Unpublished Disposition, 930 F.2d 30 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 930 F.2d 30 (9th Cir. 1989)

Nos. 89-10460, 89-10606.

United States Court of Appeals, Ninth Circuit.

Before TANG and NOONAN, Circuit Judges, and SHUBB* , District Judge.

MEMORANDUM** 

A jury found co-defendants Allan Maroun and George Bassil guilty of various offenses relating to the sale of cocaine. The jury was unable to reach a verdict with regard to Bassil's brother, Albert, who was also a co-defendant. Maroun was convicted on one count of conspiracy, eight counts of use of a communication facility in commission of a felony, and two counts of possession of cocaine with intent to distribute. Bassil was convicted on one count of conspiracy, and on two counts of aiding and abetting in the distribution or possession with intent to distribute cocaine.

Maroun and Bassil appeal the district court's denial of a motion to suppress the evidence found in the warrantless search of the premises. They also appeal the district court's refusal to dismiss the indictment on the grounds that the government did not take reasonable efforts to locate the informant at trial.

Bassil appeals the denial of his motion to suppress evidence found in the search of his automobile. He also appeals his conviction on the ground that there was insufficient evidence to convict him.

Their appeals are consolidated for disposition.

FACTS

On September 30, 1989, Michael Lena was arrested by the San Mateo Police Department for selling cocaine. The Drug Enforcement Administration (DEA) was notified that he wished to cooperate. Lena agreed to pose as a middleman who would arrange a sale of cocaine between appellant Allan Maroun and DEA special agent, Thomas Aiu. Lena made the first of a series of phone calls to Maroun that afternoon. These calls were monitored and recorded by the DEA. Lena told Maroun that he needed to purchase four kilograms of cocaine very quickly. Maroun told Lena that he would try to find a sufficient amount of cocaine. During the conversations that ensued, Maroun indicated that his cocaine source lived in the Los Angeles area and had a brother. During a conversation at about 7:25 p.m., the telephone connection got cut off. When contact was reestablished, Maroun told Lena that he had just spoken with his source and that the source could provide all the requested cocaine.

Appellant George Bassil and his brother Albert lived in the Los Angeles area. Telephone records introduced at trial showed that there were four calls that night between the residences of Maroun and Bassil between 6:55 and 9:54 p.m. There was one call at 7:23 p.m. which lasted one minute. At trial, Maroun admitted that he received a telephone call from Bassil during the course of his conversation with Lena at 7:25 p.m.

At about 8:45 a.m. the next day, Lena contacted Maroun. Maroun told him that his source was traveling from Los Angeles and would arrive in the Bay Area at approximately noon. At about 11:45 p.m., Lena again called Maroun. Maroun told him that his source was presently in Gilroy and would arrive in about an hour. Maroun's telephone records showed a call to Gilroy at 11:35 p.m.

Agent Aiu instructed his fellow agents to conduct surveillance at three locations that morning. One location was an apartment building belonging to Maroun's father located on Park Avenue in Burlingame. The second was Maroun's place of business in San Francisco. The third was a house which Maroun rented in Burlingame which was located on Laguna Street.

At about 1:00 p.m., the surveillance agents posted at 238 Park Avenue informed Aiu that there was a red Pontiac GTO parked in the alley near the apartment. Inside were two individuals later identified as George and Albert Bassil. Department of Motor Vehicle records revealed that the car was registered to George Bassil of Van Nuys. Van Nuys is located in the Los Angeles area.

At approximately 1:30 p.m., surveillance agents observed a van driven by Maroun arrive near the Park Avenue apartment building. Maroun left the van and met with the Bassils. The three then entered the building.

At approximately 1:45 p.m., Lena contacted Maroun. Maroun said, "Well, I'm ready" and told Lena that he was at his dad's apartment. Lena indicated that he knew the location. Lena told Maroun he would call back in ten minutes. Aiu then sent additional agents to the Park Avenue apartment.

At 2:10 p.m. Lena called Maroun and told him he was on his way over to the apartment. Maroun then told him that he wanted to conduct the transaction at his house on Laguna Street instead. Maroun said that they would conduct the transaction in the garage. At the conclusion of this conversation, Aiu contacted his surveillance teams. He directed one team to go directly to Laguna Street and the other to follow Maroun and his companions.

Maroun and the Bassils left the apartment and drove in Bassil's car to Laguna Street. At Maroun's residence, a surveillance agent observed George Bassil retrieve a brown paper bag from the trunk and carry it into the house.

At approximately 2:45 p.m., agent Aiu, another agent, and Lena arrived at the house. Aiu instructed Lena to obtain either a sample of the cocaine for him or to demand that the buyer be given an opportunity to examine the cocaine before payment. Aiu planned to obtain the cocaine through Lena or to have Maroun invite the agent into the garage in order to make the arrest and seizure.

Lena then proceeded into the garage. After about five minutes, he returned to the agents' location appearing upset and nervous. Lena gave Aiu a box containing one kilogram of cocaine and told him that he had seen additional cocaine in a bag in the garage. He said that Maroun was nervous and did not want to meet the buyer. Lena refused to go back into the garage. Aiu instructed Lena to leave the immediate area because he feared that Maroun was suspicious. Lena was later taken back into the agents' custody.

Within minutes, Aiu contacted his agents and instructed them to proceed into the house, arrest the occupants and secure the premises so that a search warrant could be obtained. A brown paper bag containing approximately three kilograms of cocaine was discovered in the garage. The paper bag was marked "Vons." Agent Aiu and Robinson observed the contents of the bag, then left it in its place while they continued to search for Maroun. After about ten minutes special agent, Gordon Seivert, observed Maroun hiding in the rafters. Maroun was then arrested.

Meanwhile, agents from the house reported to Aiu that they had arrested the Bassils. Aiu instructed the agents to secure the Bassils in one room and to refrain from searching the house until a warrant could be obtained. The Bassils were advised of their Miranda rights. George agreed to speak with one of the agents. Agent Golden requested consent to search the Pontiac. Bassil initially refused but later consented and gave the car keys to the agent. In the automobile, the agent discovered an address book with Maroun's name and telephone numbers for his house and beeper. They also found painting supplies.

The agents later obtained a search warrant for Maroun's residence. In the affidavit in support of the warrant, Agent Seivert disclosed facts gathered during the investigation prior to the warrantless entry. He also included the agents' entry into the garage and the observation of the brown paper bag containing cocaine.

At trial, Maroun testified that he had been acquainted with Lena from prison and feared him. He testified that he had obtained the cocaine at issue from a local source and not from the Bassils and that he used the arrival of the Bassils as a mere camouflage to protect himself from Lena. George Bassil testified that he is a professional painter and planned the trip from Los Angeles to Burlingame to assist Maroun with painting and repairs. He testified that the paper bag which he carried from the car to the residence contained his work clothes. However, a bag containing Bassil's clothes was not found in the search of the house.

ANALYSIS

The Warrantless Search of the Garage

On December 14, 1988, Maroun filed a motion to suppress evidence with an attached declaration reciting the facts of the case. He alleged that the government had a pre-arranged plan to search the house without a warrant. He also requested an evidentiary hearing. In opposition to the motion, the government filed a memorandum and declaration of Agent Aiu. The government also opposed Maroun's request for an evidentiary hearing on the grounds that the defense had not raised any contested issues of fact.

On December 21, 1988 the district court held a hearing on Maroun's motion to suppress. The court found that there was no showing that there should be an evidentiary hearing. The court then denied Maroun's motion to suppress, finding that exigent circumstances justified the warrantless search. The court made the following findings:

Prior to the DEA agents' entrance into defendant Maroun's garage, there had been an unexpected change in the logistics of the alleged drug sale, defendant Maroun had refused to be introduced to the undercover DEA agent who was posing as a narcotics purchaser, the government informant was upset and shaken after meeting with defendant Maroun in his garage, the government informant told DEA agents that defendant Maroun showed him three additional kilograms of cocaine in a brown paper sack during their meeting in defendants's garage and the government agents at the scene were aware that defendant Maroun had previously been arrested for possession of a concealed weapon.

This court reviews de novo a district court's determination of the validity of a warrantless entry into a residence. The district court's determinations of underlying facts, however, may not be reversed unless clearly erroneous. United States v. Castillo, 866 F.2d 1071, 1079 (9th Cir. 1988).

Entering a non-public place to conduct a search or to make an arrest without a warrant presumptively violates the Fourth Amendment. Payton v. New York, 445 U.S. 573, 586 (1980). However, a warrantless entry is lawful where the government can show by a preponderance of the evidence both probable cause and exigent circumstances. United States v. Lindsey, 877 F.2d 777, 780 (9th Cir. 1989). In the present cases the appellants do not dispute the fact that the agents had probable cause. Therefore, the issue is whether exigent circumstances justified the warrantless entry.

Exigency is defined as:

[C]ircumstances that would cause a reasonable person to believe that entry (or other relevant prompt action) was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.

United States v. McConney, 728 F.2d 1195, 1199 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984). As part of the exigency requirement, the government must also show that a warrant could not have been obtained in time. United States v. Lindsey, 877 F.2d at 780.

After reviewing the record, it does not appear that any of the court's fact findings were erroneous. Agent Aiu submitted a declaration indicating that this is what transpired. Nothing in the record casts doubt on his veracity.

These facts support a finding of exigency. The Ninth Circuit has found exigency in circumstances quite similar to those here. See e.g. United States v. Anderson, 813 F.2d 1450, 1455 (9th Cir. 1987); United States v. Lindsey, 877 F.2d at 781. In Anderson DEA agents had arranged to purchase cocaine through an informant. Before the actual sale took place, agents decided to arrest certain individuals involved in the transaction. The police then entered and searched a hotel room where they knew the cocaine was stashed. They had found out the precise room number about one hour before the entry and did not attempt to obtain a search warrant. The court found that exigent circumstance justified the search. It said:

It was reasonable to assume that unknown individuals were guarding the cocaine in Room 414, thus raising the possibility that these individuals might become alarmed when the others did not return and either destroy the evidence or escape.

Anderson, 813 F.2d at 1455.

In the present case, the DEA agents knew that someone was in the garage with the cocaine and that he would become suspicious if the informant did not return. In these circumstance the agents had reason to believe that he might try to destroy evidence or escape. From a review of Maroun's criminal record, Aiu was aware that Maroun had once been arrested for carrying a concealed weapon. Therefore, the agents also had reason to believe that Maroun might be armed and that he posed a danger to law enforcement officials and nearby residents. In these circumstances there is sufficient exigency to justify a warrantless search.

The district court did not abuse its discretion in refusing to conduct an evidentiary hearing with regard to the warrantless search. "Evidentiary hearings need not be set as a matter of course, but if the moving papers are sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that contested issues of fact going to the validity of the search are in question, an evidentiary hearing is required." United States v. Ledesma, 499 F.2d 36, 39 (9th Cir.), cert. denied, 419 U.S. 1024 (1974); Cohen v. United States, 378 F.2d 751, 760 (9th Cir.), cert. denied, 389 U.S. 897 (1967). The district court's decision whether or not to hold an evidentiary hearing is reviewed for abuse of discretion. United States v. Walczak, 783 F.2d 852, 857 (9th Cir. 1986).

In his motion to suppress and in his argument before the district court on that motion, Maroun essentially argued that the agents had a pre-arranged plan to search his premises without obtaining a warrant. However, Maroun did not produce any evidence, declaration or affidavit to support this contention. Although he points to certain "facts" in dispute, these "facts" are either conclusions (e.g. "exigent circumstances for the warrantless entry never existed") or unsupported conjecture (e.g. "the warrantless entry of Maroun's residence was pursuant to a pre-arranged plan").

Nor does Maroun offer any evidence that would cast doubt on the veracity of Aiu's declaration. In cases in which a defendant challenges the veracity of statements made in the affidavits supporting a search warrant, the Supreme Court only requires that an evidentiary hearing be held to contest the factual basis for issuance of the warrant upon a preliminary showing of material false statements in the warrant application. Franks v. Delaware, 438 U.S. 154, 171 (1978).

The district court did not err in holding that a telephonic search warrant could not have been obtained in time even though the government did not introduce evidence as to how long it would have taken to obtain such a warrant. The government submitted a declaration by Agent Aui which stated that there was no time to secure a warrant by affidavit or telephone prior to initial entry into the garage and residence. In Anderson the court held that the government was not required to show that it attempted to obtain a telephonic warrant where the police did not learn where the drugs were located until one hour before the search was made. The court explained:

Such a warrant 'may not be obtained simply by calling a magistrate ... ' [A] duplicate original warrant' must be prepared in writing and read to the magistrate verbatim.' Further, the agents were involved in a rapidly unfolding series of events. Although the government failed to introduce evidence regarding the time required to obtain a telephonic warrant, we conclude that based on the circumstances presented in this case it is clear that the time required was not available.

Anderson, 813 F.2d at 1455 (citation omitted). In the present case, it was not clear where the transaction would take place until thirty-five minutes before the decision to enter had to be made. In circumstances such as this, the court can conclude without a hearing that the police could not have obtained a telephonic warrant in time.

Locating the Government Informant

On December 14, 1988 Maroun also moved for the pretrial disclosure and production of the informant. In opposition to the motion, the government submitted a memorandum and a sealed declaration by special agent Paul Rozario. The declaration detailed threats against Lena's life.

On December 27, 1988, the district court issued a written order. The court noted that the request for disclosure of the identity of the informant was moot because the government had already provided Lena's name to the defendant. It denied physical production of the informant prior to trial on a finding that the government had made a sufficient showing concerning the danger to the informant's life.

On January 27, 1989, the government informed all defendants that Lena was a fugitive and that his whereabouts were unknown. On April 5, 1989, Maroun moved the court for an order compelling the government to produce Lena at trial, to provide defendants with all information regarding the location of Lena, and to make a showing of its efforts to produce Lena. Maroun further requested a continuance of the trial until Lena was produced, or in the alternative a dismissal of the indictment.

The government opposed the motion, moved to unseal Rozario's first declaration and submitted a second declaration which described its most recent efforts to locate Lena. The first declaration contained the following information: For three days starting on October 11, 1988, Agent Rozario attempted to contact Lena by telephone. He went to Lena's apartment, gained access and found it vacated. He then interviewed Lena's apartment manager, Lena's mother, the mother's neighbors, Lena's brother, Lena's last girlfriend, the girlfriend's roommate, and the girlfriend's mother. He was told that the girlfriend had moved to Milwaukee. Federal agents in Milwaukee found the girlfriend and interviewed her. She said that she had not seen Lena and believed he was still in California. A friend of Lena's and Lena's brother told Rozario that there was a contract out on Lena's life. On November 1, a magistrate issued a material witness arrest warrant for Lena. On or about November 13, Lena's mother informed Rozario that Lena was coming to town. On November 14, Lena contacted Rozario from a pay phone and told him that there was a contract on his life. Rozario urged him to come into the office, but Lena did not. In mid-December a magistrate placed a trap and trace on telephone calls made to or from the residence of Lena's mother.

The second declaration contained the following additional information: An analysis of the information received through the telephone trace produced no leads. In mid-January, the San Mateo police department issued a county wide bulletin for Lena. Between January and March Rozario was busy with other trials and did not spend time trying to locate Lena. In early April Rozario contacted the DMV. The DMV records contained no useful information. Rozario requested that a credit bureau conduct a search of Lena's records. He also requested that the Postal Service conduct a mail cover for the address of Lena's mother.

On April 19, 1989, the district court held a hearing on Maroun's motions regarding the production of the informant. On April 24, 1989, the district court issued a written order denying Maroun's motion for dismissal of the indictment. The court found that there was no showing that the government encouraged or facilitated the informant's disappearance. The court also ordered the government to provide the defense counsel with the last known whereabouts of Lena and a recent photograph. The court granted a two week continuance of the trial date. It continued the motion to require that the government prove it had made reasonable efforts to locate Lena for further hearing on the trial date.

On May 8, 1989, the district court had a further hearing on the government's efforts to locate Lena. The government reported that neither the credit bureau nor the Postal Service produced any leads to Lena's whereabouts. The government also reported that on May 1, agents in Milwaukee again attempted to contact Lena's girlfriend. Her roommate reported that the girlfriend was gone. An agent also contacted the girlfriend's brother and attempted to contact her mother. Neither provided any information with respect to the whereabouts of the girlfriend or Lena. The government told the court that after the arrest of Maroun and the Bassils, Lena had cooperated in another investigation. Through this investigation, agents had contact with Lena from October 1st through October 8, 1988. The government also said that agents had made inquiries at the San Mateo narcotics task force and that a second county-wide bulletin had been issued.

Counsel for Maroun made several arguments. First the defense pointed out that the government had released Lena without any bail or other restrictions. They noted that he had an extensive criminal record. Counsel also said that the defense had contacted Lena's former landlord and that she said that Lena was living with his girlfriend before he disappeared. They argued that the government should have focused more of its efforts on the girlfriend.

After hearing the arguments on both sides the judge ruled that the steps taken had been reasonable. Having determined that the government's efforts had been reasonable, the court refused to grant any further continuance of the trial. Upon review it does not appear that any of the district court's actions with regard to the informant constituted reversible error.

A defendant is entitled to learn the identity of an informer if the informant is a percipient witness, but he is not entitled to have the informant produced in advance of trial. United States v. Bonilla, 615 F.2d 1262, 1264 (9th Cir. 1980). The district court's decision not to order the pretrial production of the informant is reviewed for an abuse of discretion. United States v. Cutler, 806 F.2d 933, 935 (9th Cir. 1986). The court can refuse to force production of an informant where the government submits an affidavit setting forth certain facts which support the District Court's conclusion that the informant reasonably feared for his safety. United States v. Hernandez, 608 F.2d 741, 744-45 (9th Cir. 1979). The district court is not required to hold an evidentiary hearing in order to make this determination. Id. at 745-46.

In the present case, the government submitted the declaration of Agent Rozario under seal in opposition to Maroun's motion. Rozario recounted information received from several sources indicating that members of the Vera family had placed a $10,000 reward for Lena's death. With this information before it, the district court's decision not to order pre-trial production of the informant was not erroneous.

Nor did the district court err in refusing to dismiss the indictment after the government failed to locate the informant. The government is not a guarantor of the presence of an informant at trial. The government must use reasonable efforts to produce a government informant whose presence has been properly requested. United States v. Hart, 546 F.2d 798, 803 (9th Cir. 1976) (en banc), cert. denied, sub nom. Robles v. United States, 429 U.S. 1120 (1977). The district court's determination that the government exerted reasonable efforts to produce an informant may not be reversed unless clearly erroneous. Id. at 803.

In the present case, the government was not as diligent as it might have been. However, the government did take considerable efforts to locate Lena. It was reasonable to assume that the steps the government took would have led to Lena's discovery. This is not a case in which the effort of the government taken as a whole did not reflect efforts designed to produce the informant.

Maroun contends that the district court erred by refusing to hear evidence concerning the production of Lena at trial. However, the record indicates that the court held two hearings regarding the government's efforts to locate Lena. During those hearings the defense presented no evidence that the government had any role in Lena's disappearance. The defense also failed to show that any material facts were in dispute regarding the government's efforts to locate Lena. Therefore, the district court was not required to hold an evidentiary hearing.

Nor did the district court err in denying Maroun's second motion for a continuance. The district court has broad discretion in granting or denying a continuance, and that decision is not subject to review unless it clearly is shown that discretion has been abused. Actual prejudice must be shown before a trial court's denial of a continuance will be reversed. United States v. Hernandez, 608 F.2d at 746.

The district court granted one two-week continuance of the trial in this case so that the defense could attempt to locate Lena. The defense was unable to locate Lena during this time. On May 8 the district court listened to arguments from defense counsel on whether to grant a further continuance. The defense made no showing that a further continuance would lead to the discovery of Lena. Maroun has failed to show actual prejudice. Therefore, the district court's denial of the continuance is affirmed.

ISSUES AFFECTING ONLY BASSIL

The Warrantless Search of Bassil's Automobile

The district court found that Bassil voluntarily consented to the search of his automobile. A search pursuant to voluntary consent is lawful. The government has the burden of proving that the consent was voluntary. Voluntariness is a question of fact to be determined from the totality of circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). On appeal the district court's finding is reviewed under the clearly erroneous standard. United States v. Page, 302 F.2d 81, 85 (9th Cir. 1962) (en banc).

This court has previously indicated several factors to be considered in determining whether consent was voluntary. However, none of them are dispositive. They are (1) whether the defendant was in custody (2) whether arresting officers had their guns drawn (3) whether Miranda warnings had been given (4) whether defendant was told he had a right not to consent and (5) whether defendant was told a search warrant could be obtained. United States v. Castillo, 866 F.2d 1071, 1082 (9th Cir. 1988).

The district court made its decision based on the declaration of the DEA agent who received the consent. The agent declared that he read Bassil his Miranda warning and informed him that he was under no obligation to consent. He said that Bassil initially refused to consent, but that after conferring with his brother, he consented and provided the agent with the keys to the automobile. He said that he did not state or infer to Bassil that he must have drugs in the automobile. Although Bassil was in custody, there was no evidence that the government agents had their guns drawn when Bassil was asked to consent to a search of the automobile.

Based on the agent's declaration and the surrounding circumstances, the district court finding of voluntariness was not clearly erroneous.

The Admission of Maroun's Prior Drug Conviction

Maroun used duress as a defense at trial. To show intent the government properly introduced evidence that Maroun had a previous conviction involving the sale of cocaine. The court gave a limiting instruction regarding the evidence but did not mention Bassil. The court instructed:

You have heard evidence that defendant Maroun committed acts similar to the crime charged here. You may consider such evidence not to prove that the defendant did the acts charged here, but only to prove defendant's state of mind, that is, that the defendant acted with necessary intent and not through accident or mistake.

Bassil argues that the district judge should have instructed the jury specifically that the prior conviction did not involve Bassil and that it could not be used against him in any way. However, Bassil has not shown that he was prejudiced by the lack of the jury instruction. The prosecution never suggested that Bassil had been involved in the previous crime and the instruction given by the court at least implied that the conviction could not be used against Bassil. Bassil neither proposed a limiting instruction nor objected to this jury instruction. Nor did he renew his motion to sever at the close of evidence. In this circuit the court has held that where no limiting instruction is requested, the fact that the trial court fails to give such an instruction sua sponte is not reversible error. United States v. Multi-Management, 743 F.2d 1359, 1364-65 (9th Cir. 1984).

Sufficiency of the Evidence

Bassil neglected to renew his motion for acquittal at the close of evidence. Nonetheless, this court may review the sufficiency of evidence to prevent a manifest miscarriage of justice or for plain error. United States v. Mora, 876 F.2d 76, 77 (9th Cir. 1989).

The evidence against Bassil in this case is circumstantial. Nevertheless, its cumulative impact against him is quite strong. Maroun told Lena that he had a source in Los Angeles who would bring the cocaine to the Bay Area. He said the source had a brother. Bassil arrived from Los Angeles with his brother at the same time the source was expected to arrive. There was also a series of four phone calls the night before the transaction during the time that Maroun was attempting to locate the drugs. Agents saw Bassil carry a paper bag from his trunk to the house. The cocaine was found in similar paper bag. Although Maroun testified that he actually got the cocaine from a Bay Area source, the paper bag containing the cocaine was from Vons supermarket. Vons is a supermarket chain with stores in Southern and not Northern California. All these factors indicate that Bassil was the source of the cocaine. From the circumstances and timing of events, the jury could permissibly infer Bassil's knowing participation in a drug conspiracy and that Bassil was the source of the cocaine which Maroun agreed to sell Lena. United States v. Brandon, 633 F.2d 773, 781 (9th Cir. 1980).

AFFIRMED.

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The Honorable William B. Shubb, United States District Judge for the Eastern District of California, sitting by designation

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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3