United States v. Luis Salgado (99-5645) Wilfredo Jambu (99-5651)

ZBA, Zoning City or Administrator commented on the issue drainage flow, special of favoritism or treat- previous the result and traffic and of the use Even if was fa- position ment. McCalla’s if property considered. we Even by City, it does not establish vored incorrect, thought the decision was improper bias. appear the decision does not arbi- to be or irrational. trary Accordingly, there is an

Finally, plaintiffs op- were afforded of no violation substantive process.11 due court, state portunity seek review the not to claims be- pursue but chose their enjoin paving

yond attempting to of IV. Accordingly, lot. there was no parking plaintiffs Given that were allowed of procedural process. violation due participate special use deci- permit process, City sufficiently sion and that the D. Substantive Due Process considered evidence and pertaining facts This that to sus Court has held surrounding land approving before claim, in process tain a substantive due permit special park- use and allowing the action, zoning context of “a administrative ing paved, lot to be district court did plaintiff must show that the adminis state finding not plaintiffs’ err in procedur- agency guilty ‘arbitrary trative has been process al and due rights substantive were sense, capricious and action’ in the strict not violated. meaning basis ‘that there is no rational for ” the ... decision.’ Pear [administrative] Blanc, City son v. Grand (6th Cir.1992) Stevens (quoting v. Cir.1981)).

Hunt, requires very strong showing.

This Id.

(“The administrative action will withstand process due unless it ‘is

substantive attack America, UNITED STATES of supportable any on rational basis’ or is action, Plaintiff-Appellee, unreasoning ‘willful and without and in the facts disregard consideration ” or (quoting circumstances of the case.’ SALGADO, Jambu, Luis Wilfredo Bailey, 10 n. 12 Greenhill Defendants-Appellants. (8th Cir.1975))). 99-5645, Nos. 99-5651. Here, the district correct in court was concluding that “the various decisions of States Court Appeals, City, through its and councils boards Sixth Circuit. officers, have sufficient factual basis so qualify legitimate as to as rational and Argued Sept. 2000. (JA 57) state action.” approval May Decided Filed use special permit have come appears to only after significant consideration

arguments for against, on numerous

issues, were considered. Engineers However, City arguments light

11. The makes the foregoing additional dies. dis- plaintiffs’ judica- cussion, are res claims barred the Court need not address them. ta and failure to exhaust administrative reme- against on both counts both A defendants. sentencing hearing May was held on appellants and the were sentenced a term of incarceration of 121 months. appellants now assert several claims appeal. of error on I. Facts Case trial, presented The evidence includ- (briefed), Terry M. Cushing Alexander testimony of ing the co-defendant Daniel Taft, briefed), (argued T. Jr. and Asst. Rosalez, reveals that Francisco Portuon- KY, Louisville, Attorneys, Plain- U.S. do-Gonzalez was a distributor of cocaine tiff-Appellant. Louisville, Kentucky area. source His briefed), Garcia, of cocaine was Eduardo a resident (argued Yesowitch and William Miami, Barber, Associates, Florida. Banaszynski & Louis- Portuondo-Gonzalez ville, KY, Mustang and used (argued Garcia Garcia’s silver Michael M. Losavio and briefed), Louisville, KY, transport cocaine from Louis- for Defendants- Florida to ville in of 1998. April Portuondo-Gonzalez Appellants. would drive Garcia the car to Florida COLE, Before: BATCHELDER and cocaine, up pick then Portuondo- GRAHAM, Judges; District Circuit Louisville, fly would back Gonzalez Judge.* Garcia drive with Mustang would back the cocaine concealed cov- bumper under a OPINION er. GRAHAM, Judge. District Heath, Shy Louisville distributor (Case Luis No. Appellants 99- cocaine, purchased cocaine from Portuon- 5645) (Case and Wilfredo No. 99- Jambu Portuondo-Gonzalez, do-Gonzalez. who 5651) along were named with two other spoke English, little enlisted the services defendants, Francisco Portuondo-Gonzalez of Rosalez to act as an interpreter. On or Rosalez, Daniel and in a two-count indict- 26, 1998, April Shy about purchased Heath 1, on ment filed June 1998 in Western approximately two-and-a-half kilograms Kentucky. District of 1 of the indict- Count cocaine from After Portuondo-Gonzalez. alleged May a about conspiracy ment on or 26, 1998, on April the sale Portuondo- 1, 1998, possess to with intent to dis- Gonzalez left for Florida to obtain more tribute cocaine in violation of U.S.C. cocaine, his but house was into and broken § charged Count 2 846. of the indictment both Portuondo-Gonzalez and flew Garcia the defendants with with possessing intent back to Louisville. Rosalez a overheard to distribute five kilograms of cocaine conversation between Portuondo-Gonzalez 841(a)(1). § of 21 violation U.S.C. indicating Salgado, and Garcia that Luis against “Wicho,” case and Salgado Jambu also known as to be going was jury, January was tried before a driving Mustang and on co- loaded with the 1999, the jury a of guilty returned verdict caine to Louisville that week.

* Graham, Ohio, sitting by designation. The Honorable James L. Judge States District for the District Southern Patterson p.m., Jambu left shortly ly arrested after 7:57 was

Heath with and and Drive residence two women a April of cocaine on purchase agreed He to his residence on proceeded act as an informant. child and agreed to Portuondo-Gonzalez, calls telephone Lane. Sal- make monitored Bermuda several week During the Rosalez remained at the Patter- to Portuondo-Gonzalez. and gado 26, 1998, Rosa- spoke Heath with April approximately Drive residence. At son cocaine purchasing talking additional Salgado lez about on p.m., 8:20 observed Portuondo- Portuondo-Gonzalez. p.m., from and at 8:23 phone, approximately that he would informed Rosalez apartment Gonzalez left his on Bermuda Jambu Heath kilograms of cocaine. have seven Patter- arriving and was seen at the Lane re- and later called Portuondo-Gonzalez approximately Drive address at 8:30 son Por- kilograms five of cocaine. quested officer observed p.m. The surveillance told him the cocaine tuondo-Gonzalez car, the trunk his look open Jambu Friday. negotiated arrive on Heath would left, proceed and to then right for the sale of with Portuondo-Gonzalez appeared He to be the front of house. price at a kilograms five cocaine something right hand. carrying his $22,000 trans- kilogram, scheduling the per Rosalez, According to entered Jambu 1,May p.m. Friday, for 9:00 on action through ga- from the the house the door 1998. delivered into the kitchen and rage toll records revealed Telephone bag. Jambu paper grocery store brown Salgado’s cell placed calls were between Portuondo-Gonzalez, brought “I stated phone phone on and Portuondo-Gonzalez’s cocaine) (meaning and the shit” said May and on April later.” left at 8:34 you call Jambu “I’ll also placed phone were from 1998. Calls apartment returned his on p.m. cell Salgado’s to Jambu to registered half-hour, Lane. Within the next Bermuda 30, 1998, and on phone April on door looking garage out the Rosalez 1,1998. May area, which extended to patio toward the fence, figure walking and observed a May arrived in on Louisville approximately the fence. At 8:55 toward that a Telephone revealed 1998. records was seen p.m., Portuondo-Gonzalez Salgado’s cell phone call was made on officer from the rear walking surveillance phone telephone of Portuondo-Gon- yard along the fence line. approximately p.m. at 1:25 Portuon- zalez on left his located do-Gonzalez residence on the A search warrant was executed Camry approxi- Drive Patterson his approximate- Drive residence at Patterson Shoney’s mately p.m. 1:29 and drove to 1,May Portuondo- p.m. on ly 9:15 Valley in the area of Fern Restaurant wrappings holding was found Gonzalez 65, I near location of the Road and the kilograms cocaine. the five The from Apartments on Bermuda Tanglewood wrap, dryer plastic consisted of wrapping Sal- Lane where Wilfredo Jambu resided. tape. Proceeding and duct the sheets a where he trad- gado drove to restaurant along the fence where Portuondo- area Portuondo-Gonzalez, then cars with ed earlier, had been officers seen Gonzalez Camry in proceeded Portuondo-Gonzalez’s paper which had been bag found a brown Drive to the Patterson residence. A plastic bag. drug inside a blue placed to the which company dog package, in alerted was Salgado was seen kilogram contain bricks of at the found to five approximately p.m. Jambu at 5:01 cocaine. cocaine was subse- approximate- suspected Drive At The Patterson address. 446 was found

quently analyzed acquittal. to be of -the denial Our review of a 5,011 percent grams eighty-three pure acquittal motion for is de novo. United 1497, (6th cocaine. v. Wuliger, States F.2d 1509 981 Cir.1992), denied, 1191, cert. 510 U.S. 114 search, phone During the calls were (1994). 1293, 127 S.Ct. 647 L.Ed.2d at Jambu’s placed phone apart- from the phone. Jambu Salgado’s ment to cell claiming “[A] defendant insuffi wife left the Portuondo-Gonzalez’s Bermu- ciency of the bears a heavy evidence bur and drove in apartment da Road the di- Maliszewski, den.” United States 161 address, rection of the Patterson Drive but (6th Cir.1998), 992, denied, cert. stopped were and arrested. 1126, 525 U.S. 119 S.Ct. 143 L.Ed.2d 1, 1998, May police located On (1999). reviewing In a claim of insuffi parking Mustang silver lot of the evidence, question cient relevant “the A Tanglewood Apartments. drug dog whether, after in viewing evidence quarter rear panel alerted to the left light to the prosecution, most favorable it A search bumper. where met the of the any rational trier of fact could have found vehicle, Mustang revealed that which the essential beyond the crime elements 8, 1998, purchased April on by Garcia a Virginia, reasonable doubt.” Jackson v. it, sixteen Tampa, Florida miles on with 307, 319, 443 U.S. 99 S.Ct. 8,881 had the odometer. A key miles on (1979). L.Ed.2d may found in car fit the lock Jambu’s meet its through burden circumstantial ev apartment door. alone, idence and such evidence need not 1, 1998, exclude May every possible hypothesis At arrest on except the time of his guilt. Jackson, that of Salgado police. United States v. gave statement Miami, Florida, Cir.), denied, He gave a address and cert. provided phone his cell number. He U.S. stat 133 L.Ed.2d 229 ed that he had to Louisville to come visit cousin, He girlfriend. Jambu’s stated he In sufficiency assessing of the thought the car had driven from he Flori evidence, evidence, weigh “we do not car, da was a did not rental he remem but witnesses, assess the credibility or was, ber what it who gave kind of car him substitute our judgment that of the the car or car was. He where the stated jury.” Wright, he arrived in at approximately Louisville Cir.), cert. 1:30 or p.m. phone 2:00 and received call 114 S.Ct. 129 L.Ed.2d 874 Portuondo-Gonzalez, from gave who him (1994). In reviewing defendant’s claim gave directions to a He restaurant. of insufficiency, all we draw available infer car to at the Portuondo-Gonzalez restau ences and resolve all of credibility issues

rant and drove to Portuondo-Gonzalez’s jury’s Maliszewski, favor of the verdict. Camry. residence his 161 F.3d at 1006. II. Evidence Sufficiency In order to establish the offense assert that of conspiracy § and Jambu under 21 U.S.C. 846 al evidence at leged indictment, trial insufficient to sustain Count 1 of the (1) their conspiracy pos government convictions for and prove: had to an agree (2) laws; session with to ment the intent distribute co to violate drug knowledge caine, (3) and that trial court join conspiracy; the erred in and intent to the and denying their judgment participation conspiracy. motions a in the

447 (6th to Welch, bring sought and make succeed. 148-49 about v. 97 States Cir.1996). Ward, is not re- v. 190 F.3d government United States The (6th Cir.1999). agreement formal prove to that a quired Avery, v. 128 F.3d United States existed. A trier of fact could find rational Cir.1997). of a The existence presented from the at trial that evidence may from inferred circum- conspiracy be an with to agreement possess to the intent reasonably that can be evidence stantial Por distribute cocaine existed and that in the participation as common interpreted Garcia, tuondo-Gonzalez, Rosalez, Salgado at 971. An intent Avery, 128 F.3d plan. in that knowingly and participated Jambu may be inferred to distribute the cocaine The intent to the conspiracy. distribute large purity the and of the quantity from by large quantity cocaine the was shown White, cocaine. See United States by and the'cocaine and .purity of involved (6th Cir.1991). 588, 590 the fact the was trans that once cocaine at the Although presence mere by arrange ported Salgado, to Louisville partic is to show crime scene insufficient made kilo quickly ments were to sell five participation a in the ipation, defendant’s grams to Heath. purpose plan and conspiracy’s common reasonably jury The could find from the ac may be inferred from the defendant’s evidence knew and in- Salgado about tions and reactions to the circumstances. join drug by tended run conspiracy to Maliszewski, (citing at 1006 161 F.3d Garcia, that he Portuondo-Gonzalez Hernandez, 31 F.3d United States v. conspiracy, knowingly participated (6th Cir.), cert. U.S. possession and that in the he (1994)). aided L.Ed.2d 200 115 S.Ct. cocaine the intent to facilitate its dis- with agreement an must be While shown be provided evidence of tribution. Rosalez doubt, the connection yond reasonable Portuondo-Gonzalez conversation between the conspiracy between the defendant and Salgado and Garcia to the effect that only government and the is slight, need be driving Mus- person who was the silver that the only required prove defendant Florida tang containing the cocaine from conspiratorial party general May 1, jury The could conclude on agreement. Id. that Salgado participat- from evidence by The relied on evidence pos- conspiracy ed aided prove conspiracy of government transporting session of the cocaine the same evidence relied basically fense cocaine from Florida. prove charge. To upon possession infer that knew possession jury with could charge establish drugs delivering 21 he was cocaine from his evasive illegal intent to distribute under 841(a)(1) who police regarding § in Count of the indict statements to U.S.C. car, ment, gave car and the make of the government prove had to that: him the (2) (1) with possessed and from that he met first knowingly; the defendant the fact (3) substance; despite with to Portuondo-Gonzalez his statement a controlled intent Jackson, his he to visit F.3d at 1225. To that came to Louisville distribute. Jackson, (jury cousin. 55 F.3d at that a aided abetted See prove defendant guilt from could consciousness of possession intent distribute infer with substance, implausible story); United drug must courier’s controlled Mari, 2n. 785 & participated establish that the defendant Cir.)(evidenee suspicious something he circumstances the ventee as wished surrounding trip defendant’s and defen women and child were not present testimony dant’s inconsistent supported during house the transaction. story conclusion that defendant fabricated Salgado Soon after talking was observed purpose to hide actual of transporting phone, on the Jambu left apartment his drugs), cert. proceeded and back to the Patterson Drive 132 L.Ed.2d 867 Addi address at approximately p.m. 8:30 He tional connected Salgado evidence opened car, the trunk of his looked to his conspiracy. Telephone toll records re right, left and to his appeared and carry vealed calls Salgado’s several between something into the house. According phone and those of Jambu and Portuondo- Rosalez, brought Jambu a package into the shortly day Gonzalez before and on the kitchen, stated, shit,” “I brought the that the sale of cocaine to Heath towas referring to the cocaine. Within the next occur. met with Salgado Portuondo-Gon- half-hour, Rosalez a figure observed walk- exchange zalez to vehicles at a restaurant ing toward the fence in yard, the back near apartment shortly Jambu’s after Sal- at p.m., 8:55 Portuondo-Gonzalez was seen Louisville, gado’s arrival in and the Mus by the surveillance officer walking from tang parking was later found lot of yard the rear of the along the fence line. apartment Jambu’s complex. It would be The area, cocaine was discovered jury

reasonable for the to infer that the and the wrappings from the cocaine were exchange was made to facilitate the un found in the kitchen. The jury could rea- loading of the cocaine. was also sonably find from these circumstances that present at the residence on Patterson brought Jambu the cocaine to the resi- Drive the scheduled time' of the sale of dence. cocaine to Heath. He was seen using a phone shortly before Jambu left his apart Telephone toll records revealed several proceeded ment and to the Patterson prior calls to and on day of the sched- Drive address to deliver the package con uled sale of cocaine from phone Jambu’s taining the cocaine. The evidence Salgado’s phone. is suffi cell The execution of the cient to support Salgado’s search warrant convictions for at Patterson Drive com- conspiracy possession menced at 9:15 p.m. phone with the Two intent calls made from phone distribute cocaine. Jambu’s at 9:25 and 9:28 went

unanswered. At point some shortly after A rational trier of fact could search, also the commencement of the Jambu reasonably find from the evidence that was seen leaving apartment at Bermu- Jambu was a member of conspiracy, da Lane driving in the direction of the it, that he knowingly participated in and Patterson Drive address. He pulled possession he aided of cocaine police over at 9:45 p.m. jury with the intent it be distributed. could reasonably Jambu, infer that con- Shortly before the sale was to occur at 9:00 cerned about the lack of an answer to his p.m., Jambu taking was seen two women phone calls and fearing that something had and child from the Patterson gone sale, Drive resi wrong with the decided go dence and transporting them to his apart the Patterson Drive residence to investi- Lane, ment on Bermuda leaving gate. Portuon The silver Mustang used to transport do-Gonzalez, Salgado and Rosalez at the the cocaine was found in parking lot of jury residence. The could in reasonably apartment Jambu’s A complex. drug dog fer that he did this to ensure that alerted on the car. A key fitting the door found that this The trial court in the Florida. was found apartment of Jambu’s under Rule admissible evidence was ear. 801(d)(2)(E) Rules of Evi- of the Federal drug dog did not that the However, at 1009. “statements 842 F.2d at 874. identify participants which the and their Salgado and argue Jambu also in conspiracy roles the are made ‘in fur- that the admission of testimony Clark, a conspiracy.” therance’ of 18 F.3d Portuondo-Gonzalez, error because one of at 1342. conversation, the participants in the had which identify Statements another pleaded guilty and could have been called co-conspirator as the in drugs source of by However, the to testify. in conspiracy volved the are in furtherance 801(d)(2)(E) Rule contains requirement no Gesso, conspiracy. of the United States v. conspirator declarant be unavail (6th Cir.1992); 971 F.2d United able before evidence conspirator’s of the Rios, Likewise, statements is admissible. Cir.1988), denied, cert. 488 U.S. 109 Confrontation Clause does not require (1989). S.Ct. 102 L.Ed.2d 972 The “in showing of unavailability of the declarant furtherance” rule is also satisfied “when as a condition to the admission of the out- co-conspirator apprised progress of the of-court statements of the nontestifying conspiracy” and “when statements conspirator when those statements other keep conspirator are ‘made to abreast of 801(d)(2)(E). satisfy wise Rule activities, co-conspirator’s or to induce Inadi, 387, 399-400, States v. 475 U.S. participation conspiracy, continued in a or S.Ct. 89 L.Ed.2d 390 Rios, allay fears....’” [his] 842 F.2d at Salgado also argues that Rosalez’s 874 (quoting United States v. Layton, 720 testimony concerning alleged conversa Cir.1983), cert. tion between Jambu and Portuondo-Gon L.Ed.2d zalez when Jambu delivered the cocaine (1984)). should not have been admitted because it There is sufficient evidence lacked guarantees sufficient reliability. record to support the trial court’s deter that, Salgado contends while Rosalez de mination that a conspiracy existed and scribed this conversation occurring as Jambu, Garcia, that Salgado, Portuondo kitchen, the surveillance tape video Rosalez and Garcia were members arrived, showed that when Jambu Por Further, conspiracy. statements tuondo-Gonzalez was yard outside doing question involved than more mere “idle However, work. even if Rosalez was mis chatter.” The conversation concerning or-lying taken as to where the conversa driving “Wicho” the cocaine-loaded Mus tion between Jambu and Portuondo-Gon tang from Florida designed to inform occurred, zalez jury could have found co-conspirators that a substitute driver for the conversation occurred at some Garcia, who usually drove the ear up from other location and that Jambu delivered Florida, found, had been that a new the cocaine. supply of satisfy cocaine to Heath’s re quest for an additional quantity would juror further notes that a fact be delivered. This conversation ap recognized who Rosalez was excused when prising a conspirator progress that, of he indicated prior based on contacts the conspiracy Rosalez, and of a co-conspirator’s with he would difficulty have be activities was properly found to “in fur- lieving be him.1 The fact that the excused juror, These contacts fighter, consisted of the a fire- responding to minor at fires Rosalez's telephone numbers own unrelated to South Central Bell juror had reasons of his case or his obser- subscribed to Jambu and Portuondo- the circumstances trial to under Rule suspect Gonzalez as business records vations of witness 803(6) not testimony of does mean the Federal Rules of Evidence. Rosalez jurors actually reviewing evidentiary who decided In a trial court’s de that the twelve terminations, Rosalez’s testi- this court reviews de novo case could believe mony. the court’s conclusions law and reviews for clear error the court’s factual determi indepen have that some We held underpin nations that its conclusions. legal dent, beyond evidence the corroborating Reed, 167 987 United States themselves co-conspirator’s statements (6th denied, Cir.), 120 cert. U.S. knowledge of and showing the defendant’s 229, 145 S.Ct. L.Ed.2d in conspiracy required the participation A must four re- satisfy business record co-conspirator’s a statement will be before quirements in order to be un- admissible Clark, at 1341^12. admissible. 18 F.3d 803(6): der Rule However, corroborating Salgado’s evidence (1) in the membership conspiracy and Jambu’s it been must have made case, in and the trial produced regularly course of a conducted business prerequisites (2) that the properly activity; court found kept it must have been (3) of statements under business; for admission the regular the course of that 801(d)(2)(E) satisfied. Rule had been the of regular practice that business must been to have made the memo- have it by been established Where has (4) randum; and the memorandum must the evidence that a preponderance of by person have made with knowl- been existed, the defendant was conspiracy that edge of the transaction or from informa- and conspiracy, that the a member by person with knowl- tion transmitted in furtherance was made of statement edge. “the clause does conspiracy, Confrontation Weinstock, United States v. on an inde require not court to embark (6th Cir.1998) (quoting Labo Redken of pendent inquiry reliability into ratories, Levin, 843 F.2d Inc. satisfy requirements statements Cir.), cert. 488 U.S. 801(d)(2)(E).” Bourjaily, Rule of (1988)). This 102 L.Ed.2d 183-84, 107 S.Ct. 2775. Once state presented through be information must admitted, jury it was for the ments were “the or other testimony of custodian weight credibility determine what or 803(6). qualified Fed.R.Evid. witness[.]” testimony and the of assign statements meeting criteria Business records these The did not Rosalez. trial err court of infor are “unless source admissible be admitting evidence of the conversation of mation or the method or circumstances and Garcia as tween Portuondo-Gonzalez lack trustworthi preparation indicate of co-conspirators. of the statements ness.” Id. Admissibility Computer Records TV. 803(6) require does not “Rule and gather, input, personally as error admis custodian

Jambu raises in a compile information memorialized certain toll records of telephone sion of regulations. juror pliant on The had with fire store five occasions. opinion com- formed the that Rosalez not Weinstock, record.” 153 F.3d at pp. telephone business amounts. Id. 374-376. The of the records 276. The custodian need numbers involved the calls were record- by computer contemporaneous in control of or have individual ed be received, particular corporate phone being rec call made knowledge of ords, only be familiar with the but need the information was then stored recordkeeping practices. computer Id. to be downloaded company’s as needed. 378-79, Records Vari (citing pp. Deering In re Custodian Id. 383. Mr. stated Distrib., Inc., regular that it was a ety practice Bell South Cir.1991)). Likewise, be an ‘other to make reports keep “[t]o these these witness,’ records, qualified necessary types it is not and that the records are laying the foundation for the person accuracy relied on Bell South to ensure billing. pp. introduction of the business record have Id. above personal knowledge preparation.” of their information satisfies the first three criteria 803(6). McWane, Inc., admissibility under Rule Dyno Co. v. Construction (6th Cir.1999). 567, 198 F.3d 575-76 argues require- Jambu that the fourth ment, that the memorandum have must A computer printout admissible by been made with person knowledge of 803(6) if under Rule as business record the transaction or from information trans- the offer or establishes a sufficient founda aby person knowledge, mitted with was in tion the record for its introduction. not satisfied because the actual was record (10th Cestnik, United States v. 36 F.3d 904 comput- memorialized and entered into the denied, Cir.1994), cert. 513 U.S. 115 memory by computer er’s itself rather (1995) (hold 1113 S.Ct. 130 L.Ed.2d than being by person. entered Similar money ing computer-generated transfer sufficiently records have been held reliable admissible). Dyno orders See also Cons in other cases. truction, (computer print 198 F.3d at 576 admissible); Linn, out of held business records In United v. States 880 F.2d Briscoe, (9th Cir.1989), United v. 896 F.2d States 216 the court held that a (7th Cir.1990) (“It is well established computer printout showing a call placed that computer compilations data are ad from hotel room was admissible as a missible as business records under Fed. business record where the record was gen 803(6) proper R.Evid. if a foundation automatically as to erated was retained reliability ordinary of the records is estab course of business. In Bris lished.”) coe, 1494-95, 896 F.2d at telephone sub scriber data entered computer into the case, In Deering, William Manager contemporaneous placing with the of each South, of Security by for Bell was called telephone call regu and maintained in the government testify concerning lar course of billing purposes business for South Central telephone Bell records. He was held to be admissible. In United indicated that repre- he was the authorized (9th Miller, v. States 771 F.2d sentative to to court. bring records The Cir.1985), the admission of computer-gen in question records contained subscriber billing erated toll and records made con information, line including the subscriber’s temporaneously by computer itself was name, the location telephone where the upheld. installed, was the date and duration of calls, local and long telephone distance Deering Mr. testified that he did not numbers from which placed calls were know the error rate South Central Bell’s received, at which they billing system, were billing and that he was unfamiliar 1237; Young at employed 771 F.2d was programming with what Bros., Inc., Cir.), did know accuracy, although he ensure 881, 105 for measure- parameters that were there cert. argues accuracy Likewise, rates. Jambu

ments L.Ed.2d 184 fact distinguish- case is thus that instant Deering computer- did not that obtain Briscoe, re- where the evidence able from records himself but rather generated computer scanned itself vealed that him with provide someone else to asked Briscoe, every error fifteen seconds. See called for subpoena the records in the did at 1494. of the records. not mandate exclusion Construction, Dyno 198 F.3d See required is not (fact prep witness not that involved testimony to the me present expert as printed computer aration of the records it accuracy computer where chanical prepared and did not know who them were computer presented evidence precluded admission of not matters re company accurate that the sufficiently records). as business Mr. documents conducting lied it its business. upon sufficiently Deering demonstrated he Georgia, De United States sys recordkeeping familiar with the Cir.1969)(cited Miller, 771 893 n. 11 employed Bell tem South. 1237). Weinstock, also F.2d at See (witness required to know F.3d at 276 court properly The district concluded safety personally company performed how telephone question that records Moore, checks); F.2d States 923 United trustworthy and that the were Cir.1991)(not (1st 910, required that 915 an for adequate had established foundation er computers programming tested for be admission of those records as business can ad computer rors records be before 803(6). under Rule records 803(6)); Briscoe, Rule 896 mitted under computer F.2d that (showing at 1494-95 with Act Compliance Speedy Trial V. for program was tested internal regularly ad ming prerequisite not a errors alleges govern Jambu records). record computer mission of days thirty failed to indict him within ment Mr. testified that Deering indicates that 1998, May 1, required arrest on as of his comput Bell relied these South Central on Act, Speedy Trial 18 U.S.C. under er-generated records to the accura ensure 3161(b), § and that the indictment re- cy required He billing. of its was not 1998, him on against turned June should any fea testify concerning programming have been dismissed under 18 U.S.C. place guarantee tures which were 3162(a)(1). applica- § The district court’s accuracy. Speedy Trial Act reviewed tion of the is de also that Mr. argues Jambu Graef, States v. 31 F.3d novo. United testify (6th Cir.1994). qualified not con Deering was 363 not records because he was cerning these 3161(b) provides: Section sys with sufficiently computer familiar charging or indictment Deering Any tem. Mr. testified that he information of an individual with the commission programmed not who an the individual However, thirty days be necessary it offense shall filed within computer. is on testify in from the date which such individual computer programmer that the or served with a summons computer-generated order was arrested to authenticate Miller, Linn, 216; charges. with in connection such records. 880 F.2d at 454 3161(b). If limit v. Wright, § the time F.2d

18 U.S.C. States exceeded, charge denied, Cir.), that section is “such cert. U.S. 114 S.Ct. contained such against that individual (1993); Blackmon, 126 L.Ed.2d 157 be complaint dismissed or otherwise shall at 382. 3162(a)(1). §

dropped.” 18 U.S.C. 45(a) argues Jambu that Rule is not A defendant “arrested” applied should not be to extend the time Trial Act until purposes Speedy 3161(b) § limit in because it is the charges are United pending, formal federal is, complaint charge or is attorney when a formal who States determines when 363-64; Graef, issued. prosecutions criminal be He will initiated. Blackmon, procedural contends that the rules of the Cir.), 859, cert. court should not apply such actions Although L.Ed.2d However, beyond the court’s control. it is 1, 1998, May Jambu was arrested on authority the district court which has the formal and federal arrest war complaint 6(a) Rule under Federal Rules 3,May rant were not filed or issued until grand Criminal Procedure to summon the charges 1998. formal federal Since no jury government’s to which the evidence 3, 1998, May were until the indict pending presented must be in order to secure an 1, 1998, ment on June was filed returned 6(a)(“The indictment. See Fed.R.Crim.P. thirty-day within limit. shall grand juries court order one or more found that the in-

The trial court also to be summoned at such time public as the dictment timely because the thirtieth Further, 3161(b) requires.”). § interest 1, 1998, day May Sunday, following fell on requires the indictment be “filed” May 31, 1998, and therefore the deadline thirty days within with the clerk of courts. Monday, for indictment was extended to 45(a) Thus, Rule properly applied June The trial court relied on 3161(b) § period extend the time where 45(a) Rule of Crimi- of the Federal Rules day day the last would otherwise fall on a Procedure, nal provides which that where the open when courthouse not for busi period Saturday, the day last of a falls on a government ness and the has no to access Sunday, holiday, legal period or the runs jury the or grand the clerk of court. day until the the next end of which is not 45(a) trial days. properly one of The court denied these Rule has been Jambu’s applied to statutory period to the time motion dismiss the indictment extend under 3162(a)(1).2 § for returning an indictment. See United of, motion”). argues appeal disposition The also that on such The record 4, 1998, delay specified periods of 18 May certain in U.S.C. indicates also that the date of 3161(h) 1998, § 6, computing are "excluded in the appearance, May initial and Jambu's time an hearing, within which information or an in- of the date his detention would also resulting dictment be "period delay filed[.]” must 18 U.S.C. be excludable as a of 3161(h). § government correctly proceedings concerning key He the apartment. inserted Jambu’s suspicion’ by legitimate the ‘founded into of apartment the front door Jambu’s investigation” which did not consti crime key to whether the worked the determine of meaning a within the the tute search key He that the lock mechanism. learned DeBardeleben, Amendment. 740 Fourth lock, open but not operate did the he did 444-45 States v. (quoting F.2d at United apartment. the or enter the This door Portillo-Reyes, 529 F.2d 852 Cir. occurred after an earlier search of Jambu’s 1975) J., denied, (Wright, dissenting)), cert. sup- of apartment, the results which were L.Ed.2d 97 S.Ct. 50 185 U.S. pressed the trial court. by in agent We noted that the that case, “acting found case in- on a reasonable belief that The trial court that this defendant, belonged did not key volved insertion of the for the the car to “an Chrysler merely the only purpose seeing of wheth- search but discrete identified belonging it to DeBardele er it turn the and that it as defendant.” would tumbler” ben, original). in (emphasis of The 740 F.2d at beginning “was not the the search.” “search,” Lyons, 898 F.2d 210 lock a In United constituted but that the States (1st Cir.), cert. U.S. privacy interest in the was so lessee’s lock (1990), 295, 112 L.Ed.2d 249 the proba- the small that officers did not need First Circuit relied on DeBardeleben in it, to inspect ble cause and the was search holding key that insertion into the the not unreasonable under the Fourth search, of a unit not a padlock storage was Amendment. Id. at 1172-73.3 or, alternative, in an the not unreason was DeBardeleben, Under the mere insertion by search the Fourth prohibited able lock, key by of a into a an who officer Amendment. The that the court noted lawfully key the in a possesses and is key of the lock of insertion into the the be, right location where he has a to to storage merely unit was a means of identi key operates determine whether the the fying storage unit the defendant to which lock, hap- search. That is what Lyons, access. 213. The had pened in the case before us.4 further the lock court stated that was argues placed protect on the door the contents Jambu has a to one unit, “it storage of the and that is those greater privacy apartment interest one’s object vehicle, that are contents lessee’s than in a one does and that there padlock. privacy expectations, By DeBardeleben, not the fore which an au involved placing personal storage effects lock, inside tomobile should not control. Howev unit, Lyons an expectation manifested er, apartment the lock Jambu’s public contents from would be free unlocked, accessible means of an com Id. (emphasis original). view.” hallway open mon which was public. Jambu had ho expectation reasonable Concepcion, In United privacy hallway. in this lock his (7th Cir.1991), F.2d 1170 the court ad- apartment just door was as accessible dressed, issues, the among question other anyone passing through hallway as law whether enforcement officers’ use of anyone the lock on his car door was to keys try seized from the defendant passing through the building’s parking lot. apartment lock to the door of an without designed Just as the lock on a car entering apartment constituted an un- door is protect any found that property reasonable search. The left in the car and court key vehicle, the insertion turning privacy of the to ensure inside the an Concepcion, distinguishable In addressed 4. court also This case is from Portillo-Reyes, question States v. of whether the those seized F.2d 844 use of 1975), Cir. where the officer conducted a keys to enter the area locked common of the passenger compartment search of of the apartment apartment building where the door opening key. vehicle after the door with located, search; was an unreasonable There, Ninth Circuit held that inser court concluded that the defendant had no key "beginning tion of the was the expectation privacy area in the common search.” Id. at 848. We note that in United building. we that the law in While note $109,179 Currency, States v. United States the Seventh the law Circuit differs from (9th Cir.2000), Cir the Ninth circuit, Carriger, this see United States v. recently rejected argument cuit Por that (6th Cir.1976)(recognizing F.2d 545 that ten tillo-Reyes proposition stands for the expectation privacy ant has of reasonable in key mere of a a insertion into lock constitutes apartment locked an com common areas of kej' a and held that "search” the use a in of here, plex), that issue us does not concern solely that case in determine which vehicle it undisputed where is that the common area belonged parking a hotel lot to the defendant apartment onto which the door of Jambu's proscribed was not an unreasonable search opened was unlocked. by the Fourth Amendment. a played level of a defendant who protect lock functions to offense door apartment apart- of the in the keep private mitigating contents role offense: offi- gained by the The information ment. on the role in the Based defendant’s apartment a an inserting key in into cers offense, as decrease the offense level by gained as that insert- is the same door follows: door, that the key namely, into a car ing a (a) par- If the defendant a minimal a per- lock. The fact that key works the any activity, in ticipant criminal de- a may greater expectation have son by 4 levels. crease inside of residence than his privacy (b) partici- If defendant a minor vehicle, a is more in the interior of which any activity, in criminal decrease pant design, of its public to the reason visible by 2 levels. applying a different stan- does not warrant (a) lock which was apartment (b), dard to an door falling In cases between in case public this just as accessible by 3 levels. decrease automobile lock.5 as an § “This a provides 3B1.2. section U.S.S.G. properly court denied Jambu’s The trial adjustments for a defendant who range key of the motion to exclude evidence in a the offense that plays part committing apartment. to his fitting the lock substantially culpable him than makes less Id., participant.” background average Salgado Sentencing Issues VIL comment. Mitigating A. Denial Role Reduction for being par The reduction a minimal have Salgado contends that he should 3B1.2(a) § to cover ticipant in “is intended an offense for mit- received level reduction plainly only those ‘defendants who are pursuant igating role to U.S.S.G. in culpable’ participants the least among 1.2(a) participant. § as a minimal The 3B conduct, such who ex group as those In opposed such a reduction. knowledge a ‘lack of or understand hibit enti- rejecting Salgado’s claim that he was scope and of the enter ing of the structure mitigating adjustment, a tled to role and of the activities of others.’” prise here of Mr. trial court found “the role Roberts, comment, moving of cocaine Salgado quantity this (6th 3B1.2, Cir.2000)(quoting § up up here from Florida for distribution (n.l)). adjustment primarily “This is minor ... hardly is in that it does here role played single, who limited someone most other culpable make him less than very large organization, as ‘some such stated, “I don’t participants.” court very who no other role in played one by any think that Mr. could drug smuggling than large operation even referred to a minor stretch be as single marijuana ship part of a offload ” partici- much a minimal participant, less Mahan, United States ment.’ culpable pant. my He is not view less Cir.1999)(quoting participants.” than most other comment, (n.2)). 3B1.2, § “It is U.S.S.G. adjustment the downward Sentencing intended Section 3B1.2 Guide- in- participant minimal will used provides for reduction the base for a be lines However, inapposite, v. State Allinder argues that Allinder case. Jambu also Ohio, Cir.1987), case which in this there was no search 808 F.2d 1180 because and, De- apartment "open extend the under declined to fields” doctrine the contents Bardeleben, key buildings mere of found insertion of to the search containers or field, analogy applied by be a in the should search. 458 3B1.2, §

frequently.” comment. U.S.S.G. salient issue is the role the defendant (n.2). played activity in relation to the which for accountable”), held him the court or her a minor role purposes applying For of denied, 2306, 920, cert. 524 U.S. 118 S.Ct. 3B1.2(b), § “a under minor adjustment (1998); 141 L.Ed.2d 165 United States any participant who is means participant (6th Cir.1996)(re- Welch, 142, F.3d 97 152 participants, culpable than most other less inappropriate duction where full amount whose role could not described as but be conspiracy in drugs was not attributed Roberts, 379; minimal.” at 223 F.3d Walton, defendant); comment, United States v. (n.3). 3B1.2(b), § U.S.S.G. F.2d while Cir.)(noting that A a plays defendant who lesser participants defendants were minor re may role a criminal scheme nonetheless scope lation to the of the as a conspiracy if qualify participant fail as a minor his whole, they were not entitled to role indispensable or critical to the role they only reduction since ac were held scheme, importance if his success of or quantities they for the countable cocaine justify in the overall scheme as to was such actively were involved in cert. distributing), Latouf, his sentence. United States v. denied, (6th Cir.1997)(“A 320, 332 defendant F.3d L.Ed.2d 542 participation indispensable is to the whose defendant, carrying plan proponent out of the not entitled to a as the reduction.”), adjustment, cert. the downward role U.S. bears proving L.Ed.2d 805 burden of mitigating 118 S.Ct. role (1998); Burroughs, 5 aby preponderance United States v. offense evi of the (6th Cir.1993)(reduction Owusu, prop 194-95 dence. United States v. (6th Cir.2000). erly played key denied where defendant We review dis role). trict court’s denial of mitigating role adjustment to a defendant’s level offense In determining whether to award error. Id.6 clear a mitigating the defendant a reduction for Salgado The record reveals that drove offense, in the court role the district must containing the vehicle kilograms seven portion consider the of the relevant con Miami, Florida, Louisville, cocaine from conspiracy of the that was duct attribut Kentucky. The transportation of the co- purposes able defendant for de caine Florida Roberts, from was an act crucial to termining his base offense level. (in Fur- success criminal scheme. sentencing 223 F.3d at drug 380-81 ther, role defendant, Salgado’s was not limited to conspiracy court prop district simply transporting erly only During looked the cocaine. to the relevant conduct purposes trip, attributed to communicated Por- defendant for with determining via phone. his base offense level deter tuondo-Gonzalez cell He met mining mitigating whether with apply role Portuondo-Gonzalez a restaurant adjustment). exchanged States v. See also United vehicle for Portuondo- (6th Cir.)(“The Roper, 135 Toyota facili- Camry, thereby Gonzalez’s Owusu, proposed adjust- In that the mitigating court two- ate context of role part standard of review used in context of id. at 337 ments. See n. 2. Since we the result aggravating adjustments, role under which a reach in the instant cases would same be the findings district court’s factual are reviewed standard, under either we need not resolve legal for clear error while its conclusions are this issue here. novo, equally appropri- reviewed de would be unloading mandatory of falls below an otherwise statu- tating Portuondo-Gonzalez’s case, tory minimum sentence. In this the cocaine, Camry then the to Por- drove the not trial court found that the defendant did Salgado tuondo-Gonzalez’s residence. in 18 U.S.C. requirement meet the found when the Portuondo-Gonzalez residence 3553(f)(5), provides § that which to the kilograms of five of cocaine the sale supposed to occur. sentencing informant later than the the not time of truthfully hearing, the defendant has addition, Salgado In was not held to the all informa- provided Government for the full amount of cocaine accountable con- tion and evidence has defendant conspiracy. in the Portuondo involved cerning the offense or offenses that were had investigators told that he Gonzalez of same or of part course of conduct trips to to obtain co made four Florida a common scheme or but the fact plan, caine, 2,754.2 co including grams of that relevant or the defendant has no Heath 1998. April caine sold to on provide useful other or information that himself Salgado There was evidence aware of already that the Government is seven of cocaine to transported kilograms a de- preclude the information shall not 1, 1998, May Louisville on but his relevant by the that defen- termination court limited of quantity conduct was complied require- has this dant with 5,011 grams of cocaine was to be which ment. to Heath. It is transaction which sold this 3553(f)(5); § also U.S.S.G. 18 U.S.C. see purposes applying is relevant of 5C1.2(5). § adjustment. of mitigating role The extent defendant, party The as the kilogram involvement in the five Salgado’s has the seeking departure, downward culpable not less than that of the sale was by of proving preponderance burden participants other in the transaction. the evidence that he is entitled to Thus, Salgado participant. is a minor “safety valve” reduction. United States Likewise, that the record fails to show (6th Cir.1996). Adu, 123-24 only played single, limited role Salgado com required provide The is defendant transaction, or that lacked knowl he only regarding not plete information scope of the edge understanding or conviction, any but relevant offense of also transaction, mini qualify so as him as a conduct, of informa including disclosure participant. Salgado mal has not shown regarding participation of other tion that he by preponderance the evidence in the offense. people adjust to a role mitigating was entitled Cir.1997). Maduka, ment. § is apply The trial court’s refusal to 5C1.2 “Safety B. Denial Reduction which review for clear finding Valve” a factual we Adu, F.3d at error. trial court’s Salgado challenges also Salgado on a state- sentencing, not war- At relied finding decision his case did “safety he made to on the date application rant the the so-called ment which officers government disputed in 18 U.S.C. of his arrest. provision valve” found 3553(f), applica- incorporated defendant’s entitlement to the § as into U.S.S.G. § that state- provision, § 5C1.2 on basis of 5C1.2. Under a defendant tion ment, Salgado’s arguing meet who is found the court to some 3553(f)(1)- police § not truthful. forth in statements to were criteria set 18 U.S.C. (5) at the range for the stated guideline sentenced within the Counsel told the range sentencing hearing if that to his case even applicable Miami, disclosure, that left authorities he from Flori- such a district court’s denial of da, 3553(f) but that later the defense that claimed request apply § to left Tampa. 5C1.2(5) he from Government counsel § Adu, is clearly not erroneous. Salgado’s that argued further statements Here, 82 F.3d at 125. the trial court did that he drove a rental car from Florida not commit clear error in concluding that (despite contrary evidence to the that he Salgado provide failed to the government Mustang), drove that Garcia’s he did not with “a completely forthright account of recall the make or model of the vehicle his own involvement” in the offense. Id. 1,200 miles, which he had driven for the The properly trial court decided that car, person gave him or who the res- § applicable. 5C1.2 was not taurant where he met Portuondo-Gonza-

lez, and that he did not know where the C. Departure Denial Dowmvard Due located, rental vehicle could be were not to Alien Status credible. Salgado also appeal seeks to the finding Salgado position took the that he is not of the district court that he was not enti- guilty of the offenses this case. He departure tled to a downward due to his required contends that he was not to meet alien Salgado argued status. below that acceptance criteria for responsibility due to the fact that he was a Cuban na- under U.S.S.G. 3E1.1 in order to benefit tional who cannot currently deported be from “safety provision, valve” citing diplomatic due to the lack of relations be- Real-Hernandez, United States v. 90 F.3d States, tween Cuba and the United he Cir.1996). However, the court might be held indefinitely custody that, in that case noted while a defendant Immigration and Naturalization Ser- requirements need not meet the accep upon vice prison. his release from responsibility, tance of truthfully “he must The refusal of a district supply judge to culpability.” details of his own Id. Here, make a departure downward ordinarily there is no evidence that Salgado so; not fact, appealable. Byrd, did United States v. supports the record (6th Cir.1995). government’s position Salgado that A did not decision provide denying a complete downward departure may statement of his knowl be edge appealed only of the offense. where the trial court’s refus al depart was based on the erroneous The trial court concluded the sentenc- belief that it authority lacked the to do so. ing that “I hearing cannot find that Mr. Landers, United States v. 39 F.3d truthfully has all provided infor- (6th Cir.1994). Thus, in United States v. mation that he has.” The court further Ebolum, (6th Cir.1995), 72 F.3d 35 we just stated that many “there are so miss- reviewed the trial court’s decision declin ing pieces that I Mr. Salgado believe has ing a departure downward based on the knowledge of that his abbreviated state- defendant’s deportable status as a alien simply enough ments are not get him where the court indicated on the record this fifth safety element in the valve.... that he believed he lacked the authority to appear- [H]is statements do not ful- to be depart. some p. to this court.” Id. Where the case, chal In this sentencing judge lenges a complete defendant’s claim of clearly indicated that he believed he timely disclosure and the defendant authority does had the depart downward on produce not evidence that status, demonstrates Salgado’s basis of alien but that heavily too on our majority in this case. The relies declining to do so he was stated, DeBardeleben, going “I am refuse trial court decision in United States v. holding I’m not these facts. do it under Cir.1984), held where we holding I’m I’m I can’t. key that the of a into the lock of insertion has here under the facts he going to purposes ascertaining a car door the of for Where, as Jt.App. p. in case.” 475. this identity the car not a search. owner’s here, affirmatively court on the trial states id. at 445. decision DeBardele- See Our provide that alien can a the record status our view merely long-standing ben reflects departure, but declines do so basis for that, for in purposes, Fourth Amendment particular the the circumstances of under degree to a of dividuals are entitled lesser case, discretionary such awareness of cars than in their homes. privacy in their depart precludes our of power review McClellan, v. 93- See United States No. sentencing decision not judge’s (6th 4084, 589497, *4 Cir. 1994 WL at See United grant departure. a downward 1994) (“The Oct.25, (unpublished) courts (6th Farrow, 179, v. 198 F.3d 200 States traditionally interpreted have the Fourth Cir.1999).7 law offi Amendment to allow enforcement greater when war- leeway conducting cers VIII. Conclusion they than rantless searches inside vehicles foregoing, with the In accordance homes....”). In enjoy searching when of the trial court in the cases of judgments instance, turning the officer’s of Salgado and Wilfredo Jambu are Luis key in apartment lock to door Jambu’s hereby AFFIRMED. “zone held privacy” encroaches on the of Amend COLE, most sacrosanct under the Fourth concurring. Judge, Circuit Stone, 99-3208, ment. v. No. See Smith I concur in the Court’s deci- Although (6th 19, 687672, May WL at *4 2000 Cir. affirming the judgment sion district 2000) (“[T]he Fourth (unpublished) court, separately register my I write an protects priva Amendment individual’s analysis with of disagreement the Court’s cy many settings, ‘[i]n different but admissibility testimony relat- police clearly privacy none is the zone of more of a key to an officer’s insertion into ing by the unam defined than when bounded apartment the lock on Defendant Jambu’s biguous an individual’s dimensions agree I Specifically, door. do not with ”) York, Payton v. New (quoting home.’ in Part VI of majority’s opin- conclusion its 1371, 100 63 the key ion that the officer’s use of for (1980)). purposes not a L.Ed.2d 639 search. identification depar- may a split authority for downward 7. is a on issue of be considered There ture). question deportable as a court has considered whether a defendant's status This charged only depar defendant proper a downward in the context alien is basis for Veloza, committed Compare v. with offense which could be United States 83 an ture. aliens, (11th Cir.1996); only by that in such United and concluded case, (10th already Sentencing Commission had Mendoza-Lopez, F.3d Nnanna, 1993); in deter- taken alien status into consideration United States v. 7 F.3d Cir. Ebolum, 1993); mining range. guideline Cir. See and United States Here, (2d issue F.3d at we do not reach the Restrepo, 999 F.2d 645-47 38. departure on alien status 1993)(deportable proper status not a whether based Cir. alien downward), we may types since departing apply with to other of offenses United basis Farouil, decision have that the trial court's 124 F.3d Cir. determined States v. Farrow, Smith, at 1997); appealable. See United States v. (D.C.Cir.1994)(deportable alien status 654-55 reasoning I set forth adopt would Seventh Circuit States v. (7th Cir.1991),

Concepcion, 942 F.2d

where, very similar pre- on facts to those here, that the

sented the court held inser- key

tion turning the defen- lock to apartment

dant’s door determine key

whether the fit constituted a search purposes.

for Fourth See id. Amendment conclude, went on 1172. The court

however, that search did such not violate

the Fourth Amendment because the defen- privacy keyhole

dant’s interest

minimal. 1173. See id. at The same is

true here. The Fourth Amendment’s his- protection privacy

toric of the home that, facts,

suggests on different the same

investigative technique at issue might here

require probable showing cause or a

warrant; however, facts, on these Jambu’s

privacy his door lock interest was so

minimal that conduct the officer’s cannot unreasonable,

be said to have been

thus did not the Fourth violate Amend- therefore,

ment. I separately, write be-

cause I the Court believe that need not

reach holding as broad a as it does. America,

UNITED STATES

Plaintiff-Appellee, STRAYHORN,

Shannon Defendant-

Appellant.

No. 99-5203. Appeals, Court of

Sixth Circuit.

Argued March 2001. May 22,

Decided and Filed notes Jambu co-conspirators dence as the statements However, dog’s Buick. to his alert conspiracy. in furtherance would not be dog that his testified handler 801(d)(2)(E) that placed provides cocaine the odor from Rule to detect able in if ... hearsay which was is not bag [t]he statement paper “[a] in a brown fresh is against party ten a and of seven to statement is offered period for a the trunk of a co-conspirator minutes, it took Jambu ... a statement amount of time course of and further party during Portuon- apartment travel from his Fed.R.Evid. conspiracy.” ance of the further residence. Jambu do-Gonzalez’s 801(d)(2)(E). under To admit statements con- testimony of Rosalez argues that the rule, must establish government this is com- delivery of the cocaine cerning his (2) (1) existed; the de conspiracy that: tape the video pletely incredible because conspiracy; a member of the fendant was was out- showed that Portuondo-Gonzalez (3) was made further and statement time, not yard work at the doing side v. conspiracy. United States ance of the However, claimed. kitchen as Rosalez (6th Cir.), Clark, 1337, cert. 18 F.3d did not accu- assuming that Rosalez even 152, denied, S.Ct. 513 U.S. conversation oc- where the rately recall (1994). must L.Ed.2d 91 curred, jury preclude would not by preponderance these facts establish the co- that delivered finding from Jambu States, Bourjaily the evidence. attributed made the statements caine and 107 S.Ct. 483 U.S. way his location on to him at some other (1987). determining In L.Ed.2d 144 jury It was for the the residence. into under is admissible whether a statement credibility of Rosalez’s testi- determine 801(d)(2)(E), may court consider Rule given to be mony weight and the itself in of the statement the contents for con- testimony. convictions Jambu’s Bourjaily, 483 weighing the evidence. with the intent to possession spiracy Maliszewski, 2775; 181, 107 at S.Ct. U.S. by suffi- supported cocaine are distribute factual determi at 1008. These 161 F.3d cient evidence. error. reviewed for clear nations are Clark, legal at 1341. The ultimate 18 F.3d Admissibility Statements Under III. admissibility of the as to the conclusion 801(d)(2)(E) Federal Ride subject to de novo review. statement Evidence Rules of Carter, 14 F.3d United States both contend Salgado and Jambu (6th Cir.), cert. admitting into evi- erred the trial court 156,130 L.Ed.2d 94 Dan- testimony co-conspirator dence the in fur is made A statement he concerning conversation iel Rosalez if it was intended conspiracy of a co-conspirator therance between indicted .overheard objectives; it Garcia, conspiratorial promote an unin- Portuondo-Gonzalez conspiracy. actually further the Rosalez testified need co-conspirator. dicted Carter, Clark, 1342; F.3d at May prior the week during chatter” or conversa “idle 1155. Mere Portuondo-Gonzalez he overheard own indi speaker’s further the tions which fact that someone discussing the Garcia objectives than the objectives rather vidual driving the silver named “Wicho” was not made in further- are conspiracy from of the up the cocaine Mustang containing Maliszewski, conspiracy. anee of the Rios, See therance” of the conspiracy. See

Notes

The notes other from the defen 14, 1998, May 3161(h)(1); that § Jambu's for revo- Wright, motion 18 U.S.C. dant[.]” 990 cation (day hearing of the detention order which was de- at 149 F.2d of detention exclud ed); July period cided Crawford, on resulted in a of United States v. (6th Cir.1993)(date appearance excludable time under U.S.C. of first 3161(h)(l)(F)(excludable excluded). § peri- Although arguments time includes these were court, "delay resulting ods of any pretrial presented from mo- they provide to the trial tion, filing through justification from the of the the motion additional tire denial of Jam- on, hearing prompt conclusion of the or other bu's motion to dismiss. Fit- found that the was located on a Admissibility Key court door Evidence VI. of which was area” Apartment hallway Door “a common and ting Lock of open, that “public”, keyhole and the “is trial argues that Jambu obvious, area,” facing public out into the suppressed testimony court have should concealed,” “not with unrestricted access. key that a found in the the fact concerning DeBardeleben, Relying on United States apartment fit lock of his door. Mustang denied, Cir.), 740 F.2d 440 cert. reviewing suppression In a decision on 105 S.Ct. L.Ed.2d U.S. issue, findings the lower court’s we review (1984), the trial court that concluded fact error and conclusions of for clear its search, key insertion was not Jenkins, law de States v. novo. United expecta had the defendant no reasonable (6th Cir.1997). We 771-72 open in a privacy keyhole tion of that was light must the evidence in the most review door, that, public to the side of the and deci likely support the district court’s occurred, assuming that had even a search Williams, sion. justified by intrusion was minimal and (6th Cir.), cert. the circumstances. The trial court also 264, 121 L.Ed.2d 194 113 S.Ct. posses found that the officer had lawful Rodney reveals Officer record key, legitimate sion of and that Seelye of Police of the Louisville Division proper investigation per interests crime key Mustang found in a silver which the testing key in the lock. mitted police had reason believe was used does not to contest appear Jambu from transport cocaine Florida. The Mus- transpired, version of officer’s what tang parking found lot of Jam- trial court’s of fact are findings sup- complex, apartment Tanglewood bu’s clearly are not ported evidence and Apartments on Bermuda Lane. Officer Rather, argues that erroneous. Jambu he Seelye investigate whether the decided expectation privacy had an the lock to key apartment, as this was to Jambu’s door, trying apartment his would connection be evidence Jambu’s key illegal in the lock an constituted proceeded He to the conspiracy. search. apartment Jambu’s was lo- building where through cated entered an unlocked DeBardeleben, In held that the inser we open door a common corridor into keys tion of into the lock of an automobile Seelye public. knew the location Officer intrusion, justified by was “a minimal

Case Details

Case Name: United States v. Luis Salgado (99-5645) Wilfredo Jambu (99-5651)

Court Name: Court of Appeals for the Sixth Circuit

Date Published: May 18, 2001

Citation: 250 F.3d 438

Docket Number: 99-5645, 99-5651

Court Abbreviation: 6th Cir.