United States v. Pedro Moreno, Carlos Libreros

897 F.2d 26, 1990 U.S. App. LEXIS 2174
CourtCourt of Appeals for the Second Circuit
DecidedFebruary 12, 1990
Docket1310, 1311, Dockets 89-1001, 89-1083
StatusPublished
Cited by89 cases

This text of 897 F.2d 26 (United States v. Pedro Moreno, Carlos Libreros) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second 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. Pedro Moreno, Carlos Libreros, 897 F.2d 26, 1990 U.S. App. LEXIS 2174 (2d Cir. 1990).

Opinions

MAHONEY, Circuit Judge:

Defendants-appellants Pedro Moreno and Carlos Libreros appeal from judgments of conviction entered by the United States [28]*28District Court for the Eastern District of New York, Leonard D. Wexler, Judge, on December 5, 1988 and February 1, 1989 after a jury found defendants guilty of conspiracy to possess with intent to distribute more than 500 grams of cocaine in violation of 21 U.S.C. §§ 846 (1982) and 841(b)(l)(B)(ii)(II) (1982 & Supp. V 1987), and possession with intent to distribute of more than 500 grams of cocaine in violation of 21 U.S.C. §§ 841(a)(1) (1982) and 841(b)-(l)(B)(ii)(II) (1982 & Supp. V 1987). Libre-ros was also convicted of assaulting a DEA agent in violation of 18 U.S.C.A. § 111 (West 1969 & Supp. 1989). Defendants were sentenced on each narcotics count to concurrent five-year prison terms, to be followed by four-year terms of supervised release. Libreros was also sentenced to three years probation on the assault count, to be served subsequent to imprisonment. Special assessments were imposed in accordance with 18 U.S.C. § 3013 (Supp. V 1987).

On this appeal, we consider primarily whether defendants’ motions to suppress evidence, which were denied at a pretrial suppression hearing by Chief Judge Thomas C. Platt, Jr., should have been granted. Moreno claims that he was detained without reasonable suspicion, that his subsequent arrest was without probable cause, and that his statements to law enforcement officers and consents to the search of his apartment and car were not given voluntarily. Libreros contends that he was detained without probable cause or reasonable suspicion, and that cocaine seized from him was not in plain view and was thus illegally seized. Libreros also contends that he was prejudiced by the court’s refusal to let him display the bag that held the cocaine seized from him, together with the package of cocaine, either to the court at the suppression hearing, or to the jury at trial.

We affirm the judgments of conviction.

Background

The factual summary that follows is based upon the testimony of two special agents of the Drug Enforcement Administration (“DEA”), Kevin F. Mancini and Marvin Siegel, at the suppression hearing which first considered the issues presented on this appeal. Mancini and Siegel were also the only government witnesses at trial, and the parties are in agreement that the agents’ trial testimony concerning these issues substantially duplicated their testimony at the suppression hearing. That hearing resulted in an opinion by Chief Judge Platt which included factual findings consistent with the recital that follows. Defendants presented no testimony at either the suppression hearing or the trial.

On May 28, 1987, Mancini and Siegel went to an apartment building at 99-03 Corona Avenue, Queens, New York in order to locate and interview the wife of a fugitive sought by the DEA. As they approached the apartment, the agents saw Moreno and Libreros walking out of the building together, engaged in conversation. Libreros was carrying a white plastic bag. Neither Moreno nor Libreros was known to the agents.

Mancini decided to inquire if they had seen the fugitive, knew his wife, or knew in which apartment she lived. Mancini asked the defendants to “come over here for a second.” The defendants responded by starting to proceed in the agents’ direction, but Libreros stopped and only Moreno continued walking toward the agents.

Mancini then directed his attention to Moreno, while Siegel called out to Libreros and displayed his DEA shield, asking Libre-ros to speak with him. Libreros stopped, and Siegel observed him to be “visibly shaken” — fidgeting and moving the white plastic bag from hand to hand while his eyes darted about. Stating that he was with the police or DEA, Siegel asked Libre-ros, “What do you have in the bag?” Li-breros replied, “comida” (the Spanish word for food), and opened the bag to show its contents to the agent. Siegel looked in the bag and observed a brick-shaped package wrapped in brown paper and tape which Siegel believed, based upon his experience, to contain cocaine. Siegel took the bag and walked Libreros back to the apartment building.

[29]*29While this encounter was taking place, Mancini was speaking with Moreno in the vestibule of the building. In response to questions by Mancini, Moreno stated that he did not live in the building and did not know anyone who did. Moreno said that he was at the building to collect his mail, showed Mancini a key to the mailbox for apartment 3B, and opened the mailbox. Moreno was visibly nervous, and began to shake after opening the mailbox. His agitation increased when a beeper on his waistband sounded. When Siegel and Li-breros arrived at the vestibule, Moreno began to shake so uncontrollably that Mancini thought Moreno would pass out. Siegel showed the package which he had seized to Mancini, who said “cocaína.” At that juncture, Moreno “jump[ed] up,” pointed at Li-breros and said “he no with me. He no with me,” whereupon Libreros immediately fled. Siegel pursued Libreros and, after being injured when Libreros closed a gate in his path, apprehended him two blocks away.

While Siegel pursued Libreros, Mancini turned Moreno around, put his chest against the wall of the vestibule and told him: “[Sjtand there and don’t move.” At this juncture, Moreno volunteered that he did in fact live in the building, in apartment 3B, but continued to deny that he knew Libreros. After Siegel apprehended Libre-ros, both defendants were placed in handcuffs. Mancini asked Moreno if there were any more packages, or persons, in his apartment, and Moreno replied in the negative. Mancini then asked Moreno if he would allow a search of his apartment, and Moreno consented. Minutes later, after members of a New York City Police Department backup unit had arrived, Siegel asked Moreno if he objected to a search of the apartment. Moreno replied, “no,” moving his hip in a manner indicating that the agents should take the keys from his pocket.

The search of the apartment, which was unoccupied at the time, yielded a plastic box bearing the word “Raina,” a brand name for cocaine, and approximately $400 in cash. Mancini thereafter noticed a car key on Moreno’s keychain, and asked Moreno if he owned a car. Moreno replied that he did, and that the car was parked nearby. In response to further inquiry, Moreno said that he had no objection to a search of the vehicle. In the ensuing search, Siegel recovered a jacket, which Libreros said was his. A pocket in the jacket contained immigration documents in the name of “Carlos Olivero Blanco,” later identified as Libre-ros.

While Siegel searched Moreno’s car, Mancini attempted to advise Moreno of his constitutional rights. Moreno, however, claimed that he could not understand Mancini, even though Moreno had up to that point appeared to have no difficulty comprehending or responding to the agents. Shortly after the vehicle search, the defendants were taken to the Metropolitan Correctional Center for processing. En route to the Center, Moreno’s beeper sounded again, and the agents took it from him. At the Center, when the agents were obtaining information from Libreros, Moreno voluntarily spelled out Libreros’ name when the agents had difficulty with it.

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Cite This Page — Counsel Stack

Bluebook (online)
897 F.2d 26, 1990 U.S. App. LEXIS 2174, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-pedro-moreno-carlos-libreros-ca2-1990.