Unpublished Disposition, 937 F.2d 614 (9th Cir. 1989)

MEMORANDUM^* 

Appellant Paul Valov was convicted by a jury of two counts of possession with intent to distribute and distribution of cocaine and one count of conspiracy. He was sentenced to five and one-half years in prison. He now appeals his conviction, claiming that (1) the district court should have suppressed evidence seized after a warrantless entry of his apartment; (2) his indictment should have been dismissed due to violations of the Speedy Trial Act; and (3) the district court should have held an evidentiary hearing to determine if a new trial was warranted. We affirm.

Valov claims that the district court erred in denying his motion to suppress evidence obtained as a result of a warrantless entry into his apartment. The district court found that DEA agents were justified in entering the apartment to arrest Valov and secure the premises because the agents had "a reasonable belief that there was a substantial risk that evidence would have been destroyed if the agents had waited until the search warrant was issued before entering." The district court did not err in finding that exigent circumstances existed.

Here, appellant's codefendant Robert Goroza was arrested during the course of a drug transaction. Goroza identified his niece and her roommate (Valov) as his suppliers, and gave DEA agents their address. The district court found that Goroza told the DEA that his suppliers expected him to return with the purchase money immediately. Goroza's information was confirmed by a monitored phone call to the apartment. Given these circumstances, it was reasonable for the agents to believe that their warrantless entry was necessary to secure the apartment and prevent the destruction or removal of contraband. See United States v. Andersson, 813 F.2d 1450, 1455 (9th Cir. 1987) (reasonable assumption that other individuals were guarding cocaine and would become alarmed when their companions did not promptly return created exigent circumstances); United States v. Kunkler, 679 F.2d 187, 192 (9th Cir. 1982) (reasonable belief that individual was drug supplier, was cautious, expected dealer to return promptly, and would become alarmed when dealer was delayed created exigent circumstances).

Valov argues that the exigent circumstances were created by the DEA agents themselves and thus do not justify the warrantless entry. We have held that where law enforcement officers create a foreseeable exigency, they cannot rely on that exigency to justify a warrantless entry. See, e.g., United States v. Calhoun, 542 F.2d 1094, 1102 (9th Cir. 1976), cert. denied, 429 U.S. 1064 (1977). Valov's theory is that DEA agents could have instructed Goroza to tell his niece he would not return for several hours. There is no evidence to support this theory. The district court correctly found that the government did not dictate the contents of Goroza's conversation and therefore did not create the exigency.

Finally, Valov claims that the government failed to demonstrate that it could not have timely obtained a warrant. We require the government to demonstrate that a warrant could not have been obtained in time, even by telephone. United States v. Manfredi, 722 F.2d 519, 522 (9th Cir. 1983). The district court's conclusion that it was not feasible to get a warrant in time again is supported by the record. Agents testified that it took between three and five hours to obtain a regular warrant and that little time would have been saved by obtaining a telephonic warrant; in fact, their application for a warrant was not actually finished until approximately 1:30 a.m., five hours after Goroza obtained the cocaine from his source and over two hours after he called his niece.

Valov also contends that the arresting agents did not have probable cause to arrest him. He claims that the vague description given by Goroza was insufficient to warrant a belief that Valov had committed or was committing an offense. We disagree.

The record indicates that agents did have sufficient trustworthy information to support their belief that Valov was involved in drug trafficking. Goroza identified as his suppliers his niece and her roommate (described as a large white male, blond, "surfer" type, called "Bruce or Boris") and gave agents their address. His information was confirmed both when agents monitored his call to that apartment and through earlier surveillance which placed Goroza in the vicinity of the apartment. When agents entered the apartment, there were three white males; agents testified that Valov fit the description given by Goroza. The circumstances provided agents with probable cause to arrest Valov and the district court properly refused to suppress evidence obtained from the arrest. See Illinois v. Gates, 462 U.S. 213, 243-46 (1983) (informant's tip with independent corroboration provides probable cause); United States v. Klein, 860 F.2d 1489, 1493 (9th Cir. 1988) (same).

Valov next claims that the confiscation of three envelopes, later found to contain marked money from a prior drug transaction, was a form of coerced self-incrimination prohibited by the fifth amendment. The district court found that DEA agent Daniel Moore had administered Miranda warnings to Valov by reading them from a standard card before Valov produced the envelopes. This finding, based on the district court's credibility assessment, is not clearly erroneous. Thus the seizure of the envelopes voluntarily produced by Valov did not violate his fifth amendment rights.

The Speedy Trial Act, 18 U.S.C. § 3161 et seq., requires that a defendant be brought to trial within 70 days of the filing of the indictment or the defendant's first appearance in court. The Act sets forth those delays which are to be excluded in computing the 70-day period. 18 U.S.C. § 3161(h). Valov claims that delays attributable to Goroza's perjury trial and a continuance were not excludable time and therefore his indictment should be dismissed. We affirm the district court's determination that these time periods were excludable under the Speedy Trial Act.

Valov first claims that delay resulting from Goroza's perjury trial after reinstatement of Goroza's guilty plea was not excludable time. Valov argues that once Goroza's guilty plea was reinstated, the charges against Goroza "had effectively been disposed of" and Goroza in practical terms was severed from Valov. We reject this argument.

Section 3161(h) (7) excludes from the 70-day period " [a] reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted." An excludable delay attributable to one codefendant applies to all codefendants in the same case, absent severance. United States v. Calabrese, 825 F.2d 1342, 1347 (9th Cir. 1987). Here, the district court properly considered Goroza a codefendant of Valov until after his perjury trial. If Goroza had been found guilty of perjury, he would have breached his agreement to cooperate with the DEA, his plea agreement would have been withdrawn, and he would have been tried with Valov. Because the district court did not err in determining that Goroza remained a codefendant of Valov until the status of his plea agreement had been conclusively determined, the time was properly excluded under Sec. 3161(h) (7).

Valov also asserts that the district court erred in excluding a 28-day time period resulting from the continuance of Goroza's trial. Valov claims that the district court failed to make sufficient factual findings in support of the continuance and therefore it cannot be excluded.

Section 3161(h) (8) (A) requires the district court to set forth "either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial." We have held that the Speedy Trial Act requires that an "ends of justice" continuance be specifically limited in time and supported by findings in the record. United States v. Jordan, 915 F.2d 563, 565 (9th Cir. 1990). The district court's findings should make reference to the factors enumerated in the Act. United States v. Pollock, 726 F.2d 1456, 1461 (9th Cir. 1984).

The record in this case indicates that the district judge granted the continuance at Valov's counsel's request to allow Valov's counsel to obtain a transcript from Goroza's perjury trial to assist in preparing for Valov's trial.¹  The district judge stated that he granted the continuance to allow Valov's counsel sufficient time to prepare for trial in light of the need for the transcript.²  The Act was not violated, as the district court's continuance was limited in time (it set a trial date of June 26, 1989); it referred to a statutorily-enumerated reason (defense's trial preparation); and the record supports the finding that this time was deemed necessary by Valov's counsel to obtain and review the transcript.

Valov's final contention is that the district court erred in refusing to grant him a new trial and in failing to hold an evidentiary hearing. He claims that the government violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose information indicating where incriminating evidence was found. The district court properly rejected this claim.

We review for abuse of discretion the district court's decision whether to grant a motion for a new trial based on newly discovered evidence. United States v. Kenny, 645 F.2d 1323, 1343 (9th Cir.), cert. denied, 452 U.S. 920 (1981). The moving party must show the following:

the evidence must be, in fact, newly discovered; the motion must allege facts from which the court can infer diligence on the part of the movant in attempting to secure the evidence; the evidence must be more than merely cumulative or impeaching; it must be material to the issues involved; and it must be such as, on a new trial, would probably produce an acquittal.

Id.

The district court found that Valov had failed to demonstrate four of these five requirements: there was no newly discovered evidence; Valov had not acted diligently to acquire any such evidence; such evidence was not material; and it was not timely to result in an acquittal at a new trial. This was not an abuse of discretion.

AFFIRMED.