United States v. Diallo

• Court: Court of Appeals for the First Circuit
• Decided: July 14, 1994
• Docket: 93-1950
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

No. 93-1950

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                  ABOUBACAR DIALLO,

                                Defendant, Appellant.

                                _____________________

        No. 93-1951

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                    AMADOU DIARRA,

                                Defendant, Appellant.
                                 ___________________

        No. 93-2147

                                    UNITED STATES

                                      Appellee,

                                          v.

                                   MOHAMED SOUARE,

                                Defendant, Appellant.

                                 ____________________

                    APPEALS FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                            Selya and Cyr, Circuit Judges,
                                           ______________
                         and Pettine,* Senior District Judge.
                                       _____________________

                                 ____________________

            Francis R. Williams, by Appointment of the Court, for appellant
            ___________________
        Mohamed Souare.
            William  J. Murphy,  by  Appointment of  the Court,  for appellant
            __________________
        Amadou Diarra.
            Damon M. D'Ambrosio, by  Appointment of the  Court, for  appellant
            ___________________
        Aboubacar Diallo.
            Zechariah  Chafee, Assistant  United  States  Attorney, with  whom
            _________________
        Edward J. Gale, United States Attorney, was on brief for appellee.
        ______________

                                 ____________________

                                    July 14, 1994
                                 ____________________

        _____________________

        *Of the District of Rhode Island, sitting by designation.

PETTINE, Senior District Judge,   Defendants
                       PETTINE, Senior District Judge
                                _____________________

             Mohamed Souare, Aboubacar Diallo and Amadou Diarra were

             convicted under a two-count indictment for possession of

             heroin with intent to distribute and conspiracy to possess

             heroin with intent to distribute in violation of 21 U.S.C.

                841(a)(1) and 846 (1988).  Defendants Diarra and Diallo

             appeal the district court's denial of their motion to

             suppress evidence recovered after their arrests.  Defendant

             Souare also appeals, arguing that the district court erred

             in denying his motion for a separate trial.  For the reasons

             stated below, we affirm the district court.

I.

                                      Background
                                      __________

In early October 1992, Detective Thomas Verdi of

             the Providence Police Department received information from a

             confidential informant.  The informant told Detective Verdi

             that three African men had recently set up a heroin sales

             operation at 136 Harrison Street in Pawtucket, Rhode Island. 

             The informant told police that the men were part of an

             African heroin ring based in New York City.  The informant

             pointed out the three men involved in the heroin operation

             and said he knew them as "Mohamed," "Lye," and "Sekou"

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(later determined to be Souare, Diarra and Diallo).  Over

             the next month, Detective Verdi followed the defendants from

             136 Harrison Street as they travelled together to various

             locations in Providence.  Detective Verdi arranged for a

             reliable third party, who was cooperating with the police,

             to buy heroin from defendant Souare.  Defendants Diallo and

             Diarra were present during this buy.

On November 10, 1992, the informant told Detective

             Verdi that Mohamed had received a large shipment of pure

             heroin and that Mohamed, Lye and Sekou were to meet a

             customer for the heroin that night in Providence.  At 6:30

             p.m. that night, Detective Verdi and Sergeant Pedchenko set

             up surveillance at 136 Harrison Street.  The three

             defendants, plus a fourth man identified later as Omar

             Bangoura, came out of the front door of 136 Harrison Street. 

             Diarra, Diallo and Bangoura got into a red Toyota parked

             next to the building.  Souare walked up and down the street,

             looking around.  He apparently did not notice the policemen,

             returned to the red Toyota, and drove off.  Once on the

             street, Souare drove normally for awhile, then suddenly

             accelerated, ran two stop signs, and quickly turned right

             onto a busy street.  He then turned left from the right hand

             lane which required crossing three lanes of traffic, and

             sped down an entrance ramp to I-95.  Detective Verdi, from

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his previous surveillance of Souare, knew that Souare was

             familiar with the streets in that area and viewed the

             unusual driving as an attempt to evade anyone who might be

             following.  Souare turned off at the next exit and turned

             into the driveway of a house one or two blocks from the

             exit.  

                       Approximately fifteen minutes later, during which

             time the four men may or may not have entered the house, the

             men left.  This time, Souare was alone in the red Toyota,

             followed by a blue Ford driven by Diallo with Bangoura in

             the front passenger seat and Diarra in the rear seat. 

             Souare drove the wrong way up a one-way street, down a

             deserted street and stopped under a bridge.  The blue Ford

             followed each of these moves and waited under the bridge

             with the red Toyota.  After waiting, the cars returned to I-

             95 and drove in the slow lane at 45 miles per hour for

             several exits.  At each exit they passed, they would turn on

             the turning signals as if they were exiting but then would

             resume their slow driving.  When the two cars finally exited

             the highway, Sergeant Pedchenko called for uniformed backup

             to make the arrests.  

Patrolman Sion answered the call and pulled over

             the blue Ford at the direction of Sergeant Pedchenko.  After

             Pedchenko and Verdi arrived, the three police officers went

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to the car and ordered the occupants out.  As Diarra got out

             of the rear seat, he threw a hand-held calculator to the

             floor.  When Sergeant Pedchenko attempted to pat down

             Diarra, Diarra resisted and pushed away the sergeant.  The

             three men were handcuffed, placed in Patrolmen Sion's car,

             and driven up the street to a parking lot.  Pedchenko and

             Verdi followed.

While in Sion's patrol car, the three men were

             handcuffed with their hands behind their backs.  Sion looked

             in the mirror and saw that Diarra, in the middle, had turned

             his back and  cuffed hands toward Diallo.  Diallo had turned

             to face Diarra's back and hands. Sion heard the sound of a

             plastic bag crunching and looked over his shoulder at the

             men.  Diarra was using his hands, behind his back to pull a

             white plastic bag up out of the front of Diallo's pants. 

             Sion ordered the men to stop but they used their hands to

             stuff the bags between the seat back and the seat.  Sion

             pulled into the parking lot and the prisoners were taken

             from the rear seat.  The rear seat was pulled up and the

             police found eleven bags of heroin.  At the same time,

             Souare was pulled over by another surveillance car and

             arrested.  Souare had no heroin in his car or on his person.

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Prior to trial, defendants Diarra and Diallo filed

             a motion to suppress the heroin discovered in the car.  They

             argue that they were under arrest when the police handcuffed

             them at the scene of the car-stop and that the arresting

             officers did not have probable cause to arrest them. 

             Defendants Souare and Diallo filed motions to sever their

             trials from the trials of their co-defendants, alleging

             prejudicial joinder.1  District Judge Ernest Torres denied

             both motions in oral decisions from the bench.  

II.

                                  Motion to Suppress
                                  __________________

Diarra and Diallo contend there was no probable

             cause to arrest them and that the heroin discovered as a

             result of the arrests should be suppressed.2  The

             definition of probable cause is well established and not in

             dispute in this case.

____________________
             1         Defendant Diallo does not appeal the denial of his
             motion for a separate trial.

             2         There appears  to have been some  dispute below as
             to whether  the defendants were arrested  or merely detained
             for  an investigatory stop at  the time they  were placed in
             Sion's car.  On  appeal, the government seems to  accept the
             fact that the men  were under arrest prior to  the discovery
             of the heroin.  We therefore will assume that the defendants
             were under arrest when placed in Sion's car.

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"[E]very arrest, and every seizure having the

             essential attributes of a formal arrest, is unreasonable

             unless it is supported by probable cause."  Michigan v.
                                                         ________

             Summers, 452 U.S. 692, 700 (1981).  In Illinois v. Gates,
             _______                                ________    _____

             462 U.S. 233 (1983), the Supreme Court held that probable

             cause should be determined under a "totality-of-the-

             circumstances" test.  In doing so, the Court stated that

             "probable cause is a fluid concept - turning on the

             assessment of probabilities in particular factual contexts." 

             Id. at 232.  The Court rejected the prior test for probable
             ___

             cause which focused "analysis into two largely independent

             channels - the informant's 'veracity' or 'reliability' and

             his 'basis of knowledge.'"  Id. at 233.  Under the totality-
                                         ___

             of-the-circumstances test, "a deficiency in one may be

             compensated for, in determining the overall reliability of a

             tip, by a strong showing as to the other, or by some other

             indicia of reliability."  Id.  Further, "[w]here the
                                       ___

             standard is probable cause, a search or seizure of a person

             must be supported by probable cause particularized with

             respect to that person."  Ybarra v. Illinois, 444 U.S. 85,
                                       ______    ________

             91 (1979).  "The quantum of information which constitutes

             probable cause [is] evidence which would 'warrant a man of

             reasonable caution in the belief' that a felony has been

             committed."  Wong Sun v. United States, 371 U.S. 471, 479
                          ________    _____________

             (1963) (citations omitted).  "The substance of all the

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definitions of probable cause is a reasonable ground for

             belief of guilt.  And this means less than evidence which

             would justify condemnation or conviction."  Brinegar v.
                                                         ________

             United States, 338 U.S. 160, 175 (1949) (citations omitted). 
             _____________

             See also United States v. Drake, 673 F.2d 15, 17 (1st Cir.
             ___ ____ _____________    _____

             1982).

The existence of probable cause must be determined

             in light of the information known to the police at the time

             of the arrest.  Maryland v. Garrison, 480 U.S. 79, 85
                             ________    ________

             (1987).  "'[T]he existence of probable cause is to be

             evaluated on the basis of the collective information of the

             law enforcement officers engaged in a particular

             investigation."  United States v. Curry, 751 F.2d 442, 446
                              _____________    _____

             (1st Cir. 1984), cert. denied sub nom., United States v.
                              _____________________  _____________

             Silvestri, 487 U.S. 1233 (1988).  See also United States v.
             _________                         ___ ____ ________________

             Paradis, 802 F.2d 553, 557 (1st Cir. 1986).  It is obvious,
             _______

             therefore, that evidence recovered subsequent to an arrest

             cannot form the basis of probable cause for that arrest. 

             Maryland v. Garrison, supra, at 85.  Thus, we must determine
             ________    ________  _____

             whether the information available to the police prior to the

             stop of the car supports the district court's finding of

             probable cause.     

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In making this determination, we do not "conduct a

             de novo determination of probable cause, but [rather]

             determine whether there is substantial evidence in the

             record" to support the district court's finding.  United
                                                               ______

             States v. Badessa, 752 F.2d 771, 773 (1st Cir. 1985).  "The
             ______    _______

             findings of the district court after a hearing on a pretrial

             motion to suppress are binding on appeal unless they are

             clearly erroneous."  United States v. Morris, 977 F.2d 677,
                                  _____________    ______

             680 (1st Cir. 1992), cert. denied, 113 S. Ct. 1588 (1993). 
                                  ____________

             With these standards in mind, we turn to the district

             court's decision.

The district court described the relevant facts as

             follows.

                            [The police] had information from a
                       confidential informant who had proven
                       reliable.  They had some admitted
                       hearsay testimony from the confidential
                       informant that the three individuals to
                       whom he had made the controlled sale
                       previously were the three Defendants. 
                       He had identified the three Defendants
                       as being the individuals involved in the
                       heroin ring, predicted that they were
                       going to make a sale that night and sure
                       enough they appeared together, acted in
                       suspicious manner, drove in a way that
                       was, obviously, calculated to evade
                       surveillance.  

             Tr., Suppression Hearing, 4/30/93 at 51-52.  Based on these

             facts, the district court concluded "if that doesn't add up

             to probable cause to arrest them, then it's difficult to

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imagine what does."  Id. at 52.  These factual findings are
                                  ___

             not clearly erroneous and thus we must accept them as true. 

Defendants raise three arguments to the finding of

             probable cause, all based on purported flaws in the

             information from the informant.  First they argue that there

             was no corroboration of the informant's tip until after the

             arrests when the heroin was discovered.  We first note that

             under the standard enunciated in Gates, the police do not
                                              _____

             have to corroborate every detail of the informant's tip. 

             Secondly, the informant was known to the police to be

             reliable.  Further, the informant correctly reported the

             location of the three men, the type of car that Souare would

             be driving and that the three men would be traveling

             together that night.  As the district court stated, the

             three men did appear together, act suspiciously, and attempt

             to evade any followers.  The district court's factual

             findings, which we are bound to accept, support a finding of

             probable cause.  

Defendants also argue that the informant's tip was

             not sufficiently detailed to allow the police to rely upon

             it and was flawed in the details that it did provide. 

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According to defendants, the information was unreliable

             because the informant stated that there would be three men

             in a red Toyota when in actuality there were four men in two

             cars.  The inconsistencies between the informant's

             information and the reality of the situation were not of

             such importance that the information could be concluded to

             be incorrect.  The informant was correct as to the

             identities of three of the four men along with the night the

             activity would take place and one of the vehicles used.  "A

             tipster need not deliver an ironclad case to the authorities

             on the proverbial silver platter.  It suffices if . . . a

             prudent law enforcement officer would reasonably conclude

             that the likelihood existed that criminal activities were

             afoot, and that a particular suspect was probably engaged in

             them."  United States v. Chapdelaine, 616 F. Supp. 522, 526
                     _____________    ___________

             (D.R.I. 1985), aff'd, 795 F.2d 75 (1st Cir. 1986).  Such was
                            _____

             the case here.  

The factual findings of the district court are not

             clearly erroneous and these findings would lead a prudent

             police officer reasonably to believe that criminal activity

             was occurring.  We therefore hold that probable cause

             existed to support the arrests and the district court's

             denial of the motion to suppress is affirmed.

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III.

                             Motion for a Separate Trial
                             ___________________________

Defendant Souare filed a motion for a separate

             trial prior to the beginning of the trial.  The district

             court denied the motion and all three defendants were tried

             together.  Souare appeals, alleging that he suffered undue

             prejudice from the joint trial.  In denying the motion to

             sever, the district court made the following observations.

                       [T]here hasn't been any satisfactory
                       reason given as to why severance should
                       be granted in this case. . . . There has
                       been no suggestion as to any reason why
                       these cases should be severed and there
                       are a lot of reasons why they ought to
                       be joined.  One, as [the government] has
                       just pointed out, the three Defendants
                       are charged with conspiracy and
                       generally speaking coconspirators are
                       tried together.

                            Secondly, they are all charged with
                       possession involving the same incident. 
                       And to sever these cases would result in
                       a needless duplication of evidence.  We
                       would in effect have three carbon copies
                       [sic] trials of each other.  So the
                       motions to sever will be also denied.

             Tr., Suppression Hearing, 4/30/93 at 60-61.

In reviewing a denial of a motion to sever, we

             will reverse only upon a showing of an abuse of discretion. 

             United States v. Fusaro, 708 F.2d 17, 25 (1st Cir.), cert.
             _____________    ______                              _____

             denied, 464 U.S. 1007 (1983).  Abuse of discretion will be
             ______

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found "only where the failure to sever deprives defendant of

             a fair trial and results in a possible miscarriage of

             justice."  United States v. Cyr, 712 F.2d 729, 735 (1st Cir.
                        _____________    ___

             1983).  "Reversal of a conviction on the ground that a

             district court abused its discretion by denying a motion to

             sever is extremely rare."  United States v. Scivola, 766
                                        _____________    _______

             F.2d 37, 41 (1st Cir. 1985).  The burden is on the appellant

             to prove that he suffered from "prejudice greater than that

             which necessarily inheres whenever multiple defendants . . .

             are jointly tried."  United States v. Walker, 706 F.2d 28,
                                  _____________    ______

             30 (1st Cir. 1983).  Prejudice in this context "means more

             than just a better chance of acquittal at a separate trial." 

             United States v. Boylan, 898 F.2d 230, 246 (1st Cir.), cert.
             _____________    ______                                _____

             denied, 498 U.S. 849 (1990).  
             ______

Souare bases his allegation of prejudice on a

             purported disparity of evidence in the cases against his co-

             defendants Diarra and Diallo and the case against himself. 

             He points out that he was not in the car from which the

             heroin was recovered nor was any heroin found in his car or

             on his person.  He further argues that the government's case

             against him was "tenuous at best" and was strengthened by

             inferences drawn from the evidence against his co-

             defendants.  Beyond the difference in the amount of proof

             against him and his co-defendants, Souare contends that the

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case against him was based on different evidence or proof

             than the cases against Diarra and Diallo.

Souare contends that there was no evidence of

             actual possession of heroin on his part and any case had to

             be premised upon the unusual driving, the information from

             the informant, and his association with his co-defendants. 

             Although Souare proceeds to attack the strength of each of

             these pieces of evidence, such attacks are irrelevant.  The

             government's case against Souare for possession of the

             heroin rested on a theory of constructive possession:

             "possession was joint among the three men and . . . Souare

             exercised dominion and control by knowingly leading the

             other two men from Pawtucket to Providence."  Aple. Br. at

             19.  Regardless of the strength of this theory, any evidence

             relating to possession by defendants Diarra and Diallo would

             need to be introduced against Souare.  The same is true for

             the conspiracy charge.  The evidence concerning the

             activities of defendants Diarra and Diallo was a necessary

             part of the proof that Souare was a member of the

             conspiracy.  See United States v. Cresta, 825 F.2d 538 (1st
                          ___ _____________    ______

             Cir. 1987) (fact that a substantial portion of the evidence

             is not directly related to the defendant does not make it

             automatically unlawful to try him with other defendants),

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cert. denied sub nom., Impemba v. United States, 486 U.S.
             _____________________  _______    _____________

             1042 (1988).

Thus, Souare has not shown that there would be any

             difference in the evidence presented at the joint trial and

             the evidence that would have been presented at a separate

             trial.  "[W]here separate trials would have necessarily

             involved repetitive use of most of the same evidence and

             same facts, we find no possibility of such an abuse of

             discretion absent a clear showing of substantial prejudice

             to the defendant."  United States v. Ciampaglia, 628 F.2d
                                 _____________    __________

             632, 643 (1st Cir.), cert. denied, 449 U.S. 956 (1980). 
                                  ____________

             Souare has not demonstrated that the evidence would differ

             between the joint trial and separate trials, nor has he made

             a clear showing of substantial prejudice.  We can find no

             abuse of discretion in denying the motion to sever.  

The decision of the district court is therefore

             AFFIRMED. 

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