United States v. Louis Atherton

MAHONEY, Circuit Judge: Defendant-appellant Louis ap- Atherton peals judgment from a of the United States District Court for the District of Connecti- cut, Cabranes, Jose A. Judge, convicting him, trial, after a jury on two counts of distributing, possessing and with intent to distribute, cocaine in violation of 21 U.S.C. 841(a)(1)(1988). Atherton contends that § (1) the district court erred denying his suppress motion to ground evidence on the obtained; it illegally (2) that was allowing the introduction on rebuttal of evidence government agreed to exclude case-in-chief; (3) from its excluding assertedly evidenced the bias of a witness. follow,

For the reasons we affirm.

Background charged Atherton distributing, possessing distribute, with intent to 19, cocaine on four different April dates: 1988, 1989, February March September acquitted 1989. He was April February 17, as to the 1988 and counts, 1989 convicted on the but March September 1989 and All counts. of the 1989 transactions were sales to Kev- a confidential informant for the Drug Enforcement Administration (“DEA”) equipped by who was DEA with a concealed transmitter that he wore Lederer, Amy B. Atty. during purchases Asst. U.S. for the the cocaine from and re- Connecticut, Hartford, District of Conn. meetings lated with Atherton.1 Jr., (Stanley Twardy, Atty. A. U.S. below, here, argued Atherton as he does Connecticut, Fatsi, L. District Donna purchase money of marked Atty. Asst. U.S. for the District of Connect- September purchase used icut, counsel), appellee. for illegally seized from a vacant Owens, Jr., Trumbull, Howard T. Conn. and thus should not have been allowed Scanlon, Owens, (Elaine Schine, M. Nicola at trial. This evidence contention was the Donahue, counsel), defendant-ap- & for subject pretrial suppression hearing. of a pellant. pertinent We will first outline the events issue, suppression and then set forth FEINBERG, background further factual relevant to the Before MINER and MAHONEY, Judges. presented appeal. Circuit issues on exception, meeting Sep- suspicion 1. There was one Iated to Lowe his that an informant cooperating tember 1989 at which Lowe did not wear a with local authorities to uncov- previously illegal activity. transmitter because Atherton had re- er narcotics cooperating po- ed and Suppression Is- A. Pertinent Events Eventually, lice. Lowe met with Atherton sue. him to a vacant and followed Bry- Agent testimony of DEA John exchange. the mall order to conduct hearing related suppression fonski at meeting, specif- this Agents could overhear following. ically counting money, by means of the Bryfon- told informants early as As the concealed transmitter that Lowe was brother, his Alberto and that Atherton ski Lowe, wearing. prearranged, upon As ex- trafficking in cocaine Howe, were mall, a iting the delivered the cocaine to By London, area. the Connecticut New desig- agent DEA and left the area for a had become the Howe summer twenty min- approximately nated location investigation. Surveil- DEA target of a away. utes making al- Howe agents observed lance mini-mall, daily trips agents to the Seafarer juncture, most At this arrested Ather- Atherton, in owned Although an establishment the ton at a rear exit from mall. In customers. cocaine order to meet with ignorance drug professed Atherton of a was arrested while August Howe cooperate, transaction and declined to a three kilo- approximately possession of light that he portable ultraviolet revealed cocaine, handguns were and grams of “buy” from the powder had some of the He office and automobile. seized from his however, money, The money on his hands. charges in court. state thereafter faced possession. was not his Meanwhile, April an informant agents’ The the cocaine believed purchase a controlled already had made might transaction have involved Howe cocaine from Atherton. one-eighth ounce of Novoa, operator of a Rosalbina the video purchased Lowe February In Kevin who, Howe, mall like faced store the from four ounces of cocaine approximately agents charges cocaine in state court. The apartment in the in a Sea- Atherton vacant that these individuals were further believed agents Howe mall. Surveillance saw farer mall, consequently that transaction was enter the mall while imperative “buy” the considered it to locate occurring. Lowe returned to the When money it could removed. before be pay later to a final mall about two weeks Bryfonski agents other entered and two purchase, on this he encoun- installment began checking signs the mall and for Howe, accept offered to the de- tered who powder on the doors of the sec- ultraviolet Instead, Atherton. livery on behalf of apartments. Finding smudge a ond-floor pay- the immediately thereafter made Lowe eight, powder apartment on number 16, 1989, Atherton. March ment to On and, presence, agents announced their re- approximately again purchased Lowe four forcibly Af- ceiving response, entered. from Atherton in a va- ounces of cocaine confirming apartment va- ter was mall. apartment cant at Seafarer cant, agents guard stationed a at the September Lowe entered into the mall. door and exited negotiations with Atherton for another co- Bryfonski meeting While was with other purchase. and Atherton ar- caine lot, agents parking they spotted in the rear ranged kilogram a sale of one-half of co- They spoke at rear the mall. Howe September for on caine minutes, with Howe for several and ob- exchange again place to take at with the expose the considera- tained his consent mall. The Connecticut state Seafarer carry- currency ble amount of that he was $15,000 “buy” police supplied Lowe with ing light. powder No ultraviolet money, powder was treated with a which money, interroga- was found on the exposed unless that was undetectable tion of Howe was concluded. light. ultraviolet now, mall, agent By another had contacted When Lowe arrived at the he en- Lowe, Howe, agent relayed Bryfonski who warned Lowe about and that countered apartment where the recently an individual who had been arrest- directions to the place. confusion sale had taken Due to starting point di- concerning the This an investigation large of a however, rections, Bryfonski and other scale narcotics matter in agents which agents occupied apartment to an went reasonably could conclude weapons mall, the third floor of the and the inhab- present. building ques- permitted itants to enter and tion, earlier, as I have found large wrong confirm that had the unit. maze-like. The were unfa- Through further contact with miliar building. buy And the agents ascertained that the money provided by the State of Connecti- “2” on the second floor and on the cut yet Indeed, had not been found. Proceeding door. number brother, defendant’s who was known to two, they powder found traces of on the all concerned on the Government’s side announcing presence door. After their trafficker, to be a narcotics was at liber- receiving response, agents forcibly ty somewhere within the mall. apartment. apartment entered the The circumstances, All of these among oth- vacant, plastic but there was a white ers, lead me to the conclusion that it was bag currency filled with on a table in front entirely agents reasonable for the to be- doorway. agents of the did not search lieve that there would be an effort to premises, guarded apartment but sequester locate and these monies. And Bryfonski steps

while took to secure a circumstances, in those when the search warrant. The mall is L- Seafarer buy money learned where this was to be shaped, consisting buildings perpen- of two found, they justified were entering other, each dicular to with different street location without a warrant. addresses, porch that are connected a In entry addition to their apartment into area. The search warrant that the two, agents number also ultimately made a warrant- obtained misidentified the street apartment less search of a basement address attributable to number below Atherton’s two, indicating apartment empty was on office. There seized an kilo- perpendic- strainers, Bank Street rather than the gram package, triple a beam ularly adjacent scale, box,” Golden Street. and a “hot which is a device purity that measures the of cocaine. There B. Proceedings. Other Events and was cocaine residue on some of these earlier, Conceding items. superseding entry As indicated that this was il- indict- charged legal, ment agreed Atherton with four counts of with defense distributing, possessing with intent to counsel that the evidence could not be used distribute, cocaine in violation of 21 U.S.C. government’s case in chief. 841(a)(1)(1988). sup- Atherton moved to § trial, At Lowe govern- testified for the press apartment, items seized from the regard ment with to the 1989 transactions. challenging validity both the of the war- cross-examination, On Lowe testified that rant entry and the warrantless of the cooperate he was motivated to apartment. rejected The district court Ath- government by unhappy experiences his erton’s contention that the misidentification drug use and his desire to do some- street address of the in- thing addition, about the trade. In warrant, validated the concluding “that Lowe testified that he had not used cocaine Apartment 2 adequately was described since 1986. the search up- warrant.” The court also part case, As of the defense Atherton’s entry, stating: held the warrantless sought counsel to elicit that as- event, to the extent that there’s sertedly would demonstrate Lowe’s bias an regarding issue the existence exi- testimony, for his stat- motivation gent support circumstances to the search ing: 2,1 Apartment find that in the circum- presented exigent

stances such testify circum- We have witnesses who would December, 1988, stances did exist. part that in the latter Connecticut, and Discussion came to when he spring and into the entire throughout Suppression A. The Motion. 1989, Kevin Lowe was May and June Atherton contends that the district cocaine, actively engaged in the use by (1) finding exigent court erred that cir distributing cocaine. he was ... justified entry cumstances the initial into two, (2) concluding number subsequent search warrant was so far that Mr. The record ... shows despite effective the misidentification of under ar- up came to Connecticut uphold address. the street Because we rest, unfinished busi- that he had some finding exigency, district court’s respect probation which re- ness with questions regarding need not address time, up to mains unfinished validity of the warrant. four times he has arrested ... governing The standards our are review jail a minimum ... he had “A well settled. district court’s determina [government] in- exposure active [due to] exigent tion as to whether circumstances tervention. ... fact-specific, existed is and will not re clearly versed unless erroneous.” United exactly that— [M]y purpose MacDonald, (2d would be F.2d States — Cir.1990) (in banc), testimony denied, the of Kevin cert. U.S. to contradict —, 1071, 111 112 S.Ct. L.Ed.2d 1177 help he did to Lowe that he did what (1991). Similarly, exigent the circum fact, but, help society, in he did it to exception require stances to the warrant problems himself and all of the various ment, case, applies it as to this is well experiencing right he while he was delineated this circuit. In United States operating as an informant in 1989. (2d Cir.1980), Vasquez, v. 638 F.2d 507 cert. granted govern- The district court the denied, 970, 1490, 450 U.S. 101 67 S.Ct. to exclude this ment’s motion in limine 620, 847, 975, L.Ed.2d 102 454 U.S. S.Ct. 608(b). testimony pursuant to Fed.R.Evid. 165, 528, 135, (1981), police 70 L.Ed.2d 396 subsequently The court heard the testimo- officers, Yasquez arresting after on the ny of a defense witness on this issue with street, 4, see id. at 516 & n. entered what absent, jury after which it reiterated its apartment believed to be his without a ruling proffered testimony. exclude the “security warrant in order to make a use, drug The witness testified as to but check,” at 532. found see id. We distribution, by not 1988 and entry meaning “reasonable” 1989. of the fourth amendment the dis because “implicitly trict court found that the offi in his Atherton testified own behalf cers entered with the intention to make a subjected to extensive cross-examina- check, security explicitly found that testimony, tion. the basis of this dis- On there were for their reasonable bases belief hereinafter, fully more cussed district that additional evidence was permitted to intro- might and that there be some testimony regard- duce in its case rebuttal destroy it.” one there who could Id. at drug paraphernalia ing the discovered 532. basement, previous- Atherton’s office items Vasque,, repeatedly up have Since ly suppressed during government’s held warrantless entries where law en case-in-chief. reasonably forcement officers believed that earlier, jury acquitted As stated Ath- premises immediate to the was nec access on the first two counts in the indict- erton essary prevent the loss of evidence. ment, representing the earlier controlled See, e.g., Schaper, v. 903 United States cocaine, him 891, (2d Cir.1990); sales of but convicted on the F.2d 894 United States counts, representing Miles, 382, (2d Cir.1989) the more latter two F.2d v. 889 383 curiam); appeal (per recent sales. This followed. United States v. Gallo-Ro

733 76, (2d Cir.1987); with, man, cooperate tion to 816 F.2d 79-80 and his bias favor of, Martino, 860, government. F.2d 664 It is true States that when United Cir.1981)(dictum), denied, (2d evidence of a prior n. 6 cert. witness’ 875 misconduct is 3493, properly bias, 73 L.Ed.2d offered to 458 U.S. 102 S.Ct. show that evi (1982). dence “is not limited 1373 the strictures of 608(b).” Schwab, Rule United States v. finding type that this The district court’s (2d Cir.1989) 886 F.2d (citing Unit exigency existed at the time that James, (2d ed States v. 609 F.2d 45-46 was, agents forcibly entered the cert., Cir.1979), denied, 445 U.S. minimum, clearly not erroneous. at (1980)), S.Ct. 63 L.Ed.2d 321 cert. sup- at the Agent Bryfonski’s — denied, U.S. —, 110 S.Ct. hearing that he and pression established (1990). L.Ed.2d 1041 agree We per- that two the other were aware government, however, the district previously charged with sons who had properly court could conclude that this tes trafficking were somewhere within cocaine timony bias, probative was not and was persons, Seafarer mall. One of those appropriately therefore pursuant excluded Howe, had ex- Atherton’s brother Alberto 608(b). 608(b) to Fed.R.Evid. provides Rule government’s infor- pressed concern to pertinent part: mant, Kevin about a current narcot- Specific instances of the conduct of a investigation by law enforcement au- ics witness, purpose of attacking or Also, frequent Lowe’s contacts thorities. supporting credibility, the witness’ ... attempting negotiate with Howe while may proved by not be extrinsic evidence. conduct cocaine transactions with Ath- in- erton indicated that Howe Essentially, question presented is activity. in the criminal Further- volved whether the district court its abused discre- more, had reason to know of the Howe by refusing tion proffered to find the testi- ongoing currency, agents’ search mony sufficiently probative to be of Lowe's questioned at the since Howe rear government asserted bias in favor of the to currency of the mall and tested that he was warrant its admission into evidence. See light. carrying portable with the ultraviolet Abel, 45, 54, v. United States 469 U.S. 105 Finally, importance it of little that is (1984) (“A S.Ct. 83 L.Ed.2d 450 taxpayers’ money danger of was in district court is accorded a wide discretion disappearing. in determining admissibility of evidence Rules.”). perceive under the Federal We entry, Once the made a lawful no abuse of discretion here. buy money clearly subject was to lawful seizure, “plain sitting since it was view” proffered Atherton a witness who on a table in front of the door. See United testified, presence jury, out of the Gomez, 999, (2d F.2d 1008 States v. 633 purchased illegal that Lowe had and used Cir.1980), 994, denied, cert. 450 U.S. 101 drugs during period acting that he was 1695, (1981); 68 L.Ed.2d 194 S.Ct. see also government In a as a informant. limited 20, (2d Morgenthau, Katz v. 892 F.2d 23 sense, illegal government conduct of Cir.1989) curiam) (dictum). (per According probative can witness be considered ly, we decline to address Atherton’s chal bias, theory likely that the witness is on validity lenge subsequently to the curry government attorneys the favor of issued warrant. proba prosecution. order to avoid evidence, however, de tive value of such Evidentiary B. Issues. showing pends large measure on some contemplating government Atherton contends that the dis aware, erroneously prosecution, or at least trict court excluded evidence involving illegality. Compare v. drug activity United States (error James, & n. 11 government informant and witness. Ath 609 F.2d at 45-46 testimony reports and of fed argues testimony regarding erton exclude FBI prosecu- regarding criminal activity prosecutor Lowe’s Lowe’s motiva- eral evidenced 734 pursuant witness government Finally, reject

tion of Atherton’s conten tion government bias, should not 608(b) although relevant to have rule where permitted impeach his credibility on 403), perhaps excludable under rule its rebuttal through case evidence that was 608, Capozzi, v. 883 F.2d United States barred from its case chief. Atherton Cir.1989) (extrinsic (8th evidence ex- 616 argues impeachment that such improp 608(b) cludable under rule where record er subject possession because the of his any arrangement “reveals no evidence of drug paraphernalia in his office was government and or deal between the [its cross, only direct, broached on not exami — denied, U.S. —, witness]”), 110 cert. Havens, nation. In United States v. 1947, (1990); 109 L.Ed.2d 310 S.Ct. United 620, 1912, U.S. 100 S.Ct. 64 L.Ed.2d 559 1088, (5th 779 F.2d Lamp, States v. (1980), however, Supreme Court held Cir.) (characterizing defendant’s bias theo suppressed may evidence be used to ry as “far-fetched” where “the evidence impeach of a defendant elicit presents suppose no reason proper ed [the cross-examination: government thought the authori witness] impeaching terms of a defendant’s investigating ties were him” and “does not seemingly false prior statements with his inconsistent utterances or with other reli- suggest by any an awareness law enforce able evidence govern- available to the agency conduct]”), ment of the [criminal ment, we see no difference of constitu- denied, 1144, 2255, cert. 476 U.S. 106 S.Ct. magnitude tional between the defen- 90 L.Ed.2d 477 U.S. 106 S.Ct. dant’s statements on direct examination (1986); 91 L.Ed.2d 572 United States questions and his put answers to to him (11th Corbin, Cir.1984) v. 734 F.2d on cross-examination that are plainly (rejecting testimony offered to show bias scope of the defendant’s direct proffer “no because evidence or else examination. Without this opportunity, where in the record indicates that [the the normal function of cross-examination government had reason to believe witness] severely impeded. would be arrangement government that his Id. at 100 S.Ct. at 1916. prosecution”); would immunize him from The rebuttal evidence was therefore Noti, and United 731 F.2d States Indeed, properly allowed. the following (9th (district Cir.1984) proper 612-13 testimony on Atherton’s direct examination ly ruled that evidence of wit arguably opened govern- the door to the only credibility ness’ use went ment’s rebuttal: where no there was evidence that witness Q ... Mr. Pierce said you ... that cooperated gain lenient treatment or de opened a desk drawer ... there investigation). fer an packets powder were two small of drawer, you the desk and ... that used Atherton has failed connect Lowe’s packets. some cocaine from one of the alleged drug relationship use to the be- fact, you, Did any use cocaine with government. tween Lowe and the The time, Tom during period Pierce that of use, proffered testimony only drug showed you if recall? distinguished distribution, by as from A Had I taken cocaine my out desk Lowe, despite trial counsel’s claim that he drawer? No. distribution, had evidence of and there was My has been entered twice office Government, showing any government awareness the and I’m sure other any danger that use or he times, they’ve any- never found prosecuted would be because of it. Accord- thing my office. ingly, properly the district court could de- Yes, Did we do cocaine? and that was proffered testimony termine that the packet from the that Tom Pierce had. probative only of general Lowe’s character Emphasis added. truthfulness, for and that such extrinsic Conclusion evidence was therefore inadmissible under 608(b). rule judgment The of conviction is affirmed. FEINBERG, (dissenting): Judge reasons to believe that Circuit someone was in the apartment. portion of the agree I not do majority opinion approves of the dis- majority The states agents that the “con- finding exigent “that circum- trict court’s it imperative sidered ‘buy’ to locate the entry apart- initial into justified stances the money before it could be removed.” finding, number two.” Based on this ment that, Granting it is still hard to see what held that the seizure of the district court exigent the circumstances pre- were that buy money justi- in marked agents vented the getting from a search money plain was “in fied because the view” warrant. If money was in the vacant a when the table apartment, powder as the “traces of on the entered, lawfully con- agents was, door” indicated it probably money sequently sup- Atherton’s motion to denied going away. was not to walk majority The I press important evidence. believe this apparently agents’ relies on the knowledge error, I that this was and therefore cannot persons that “two previously who had been judgment

join in the affirmance charged with trafficking cocaine were below, however, explained conviction. As somewhere within the Seafarer mall.” But may nevertheless have been the evidence had no reason to believe that theory. on another Because de- admissible apartment. either was the vacant In requires termination of that issue further fact, they questioned just one of them court, I findings by the trial would remand. (Howe) part in another of the mall. theOn had, basis information regard finding exigent to the

With easily posted could have circumstances, guard majority is correct that short, and obtained a warrant. there years frequently in recent we have found persuasive justification was no for a war- exigent justified circumstances war- entry, rantless and the district court’s find- entries when “law enforcement of rantless ing exigent clearly circumstances was reasonably ficers that immediate believed erroneous. premises necessary access to the However,

prevent the loss of evidence.” However, indicated, $15,- already as upon by majority the cases relied make money may 000 marked nevertheless have clear that such circumstances the law been admissible evidence on an alternate reasonably enforcement officers must be ground. government argues lieve “that additional evidence was evidence would have found in that there during event the execution of the search See, destroy someone there who could it.” apartment shortly after- warrant e.g., Vasquez, United States v. 638 F.2d States, Murray wards. Under v. United (2d Cir.1980) added), (emphasis 2529, 101 L.Ed.2d 487 U.S. 108 S.Ct. denied, cert. 450 U.S. 101 S.Ct. (1988), may be able to (1981). The 67 L.Ed.2d 620 second of those “on show that the warrant was obtained two conditions was not satisfied here. wholly the basis of information unconnect- Confidential informant Lowe told the entry.” at ed with the initial Id. given

agents that he had defendant Ather- 2532. This is a matter on which S.Ct. at money exchange ap- ton the marked the district court would have to make apartment, in a supported by for cocaine vacant the evi- propriate findings, agents in fact heard the details of the I remand for that dence before it. would through transaction the concealed transmit- purpose. wearing.

ter Lowe was Atherton was ar- apartment. he

rested after left the vacant presence announced their

When two, they

at the door of received response. The record is devoid indi-

indication that the heard noises

cating presence or had other someone’s

Case Details

Case Name: United States v. Louis Atherton

Court Name: Court of Appeals for the Second Circuit

Date Published: Jun 26, 1991

Citation: 936 F.2d 728

Docket Number: 870, Docket 90-1402

Court Abbreviation: 2d Cir.