Appeal from a judgment of conviction, after jury trial in the Southern District of New York, Lee P. Gagliardi, District Judge, on one count of conspiring to violate the federal narcotics laws and one count of distributing cocaine and possessing it with intent to distribute, the issues on appeal relating to the district court's denial of appellant's pre-trial motion to suppress 1.2 kilograms of cocaine seized without a warrant from the apartment of a co-defendant at the time of the latter's arrest. Affirmed.
Before Friendly, Timbers and Van Graafeiland, Circuit Judges.
Appellant Giorgio Penco appeals from a judgment entered May 10, 1978 in the Southern District of New York, after a jury trial before Lee P. Gagliardi, District Judge, convicting him of conspiring to violate the federal narcotics laws (Count One) in violation of 21 U.S.C. § 846 (1976), and distributing cocaine and possessing it with intent to distribute (Count Two) in violation of 21 U.S.C. §§ 812 and 841 (1976).*fn1 The questions on appeal all relate to the district court's denial, after a hearing, of appellant's pre-trial motion to suppress 1.2 kilograms of cocaine seized without a warrant from the apartment of Leslie Duverglas (a co-defendant and co-conspirator) at the time of the latter's arrest on January 31, 1978. Specifically, the questions presented are (1) whether Penco has standing to assert violations of his constitutional rights with respect to the seizure of cocaine from Duverglas' apartment, and (2) if Penco has standing, whether the seizure of the cocaine was in violation of the Fourth Amendment. For the reasons below, we affirm.
This case stems from the efforts of the federal Drug Enforcement Administration (DEA) to put Penco, Leslie Duverglas, Patrice Mespoulede and others out of the business in which the DEA believed they were engaged the sale of multi-kilogram quantities of cocaine. Toward that end, the DEA employed as an informant one Dennis Solovay, who himself had been arrested on federal narcotics charges.
One of the individuals to whom Solovay had sold cocaine was Mespoulede, who shared an apartment at 210 Central Park South in Manhattan with Duverglas and the latter's girl friend, Amy Bonk. On October 25, 1977 Mespoulede introduced Solovay to Duverglas at the Studio 54 discotheque in Manhattan. Duverglas later confided to Solovay, according to the latter's testimony at trial, that Duverglas and Mespoulede were partners in a cocaine operation.
Duverglas and Solovay again met at Studio 54 on Saturday night, January 28, 1978. Duverglas told Solovay that he had for sale "some fantastic flake cocaine" and that he was trying to acquire some quaalude.*fn2 Solovay reported this conversation to Special Agent Hall of the DEA.
Two days later, on the afternoon of January 30, Solovay spoke by telephone with Duverglas by calling the latter's Central Park South apartment. Duverglas confirmed that he had cocaine for sale, quoted Solovay a price of $1,400 an ounce for 18 ounces, and said that his supplier could provide several kilograms. Solovay replied that he would have to check the proposed deal with his "people". On the evening of the same day Solovay went to Duverglas' Central Park South apartment. There Duverglas showed him an ounce of cocaine and gave him two small samples from the ounce. Solovay used one sample in the apartment and later turned the other sample over to the DEA for analysis.
The following day, January 31, Solovay again called Duverglas, told him that his people liked the sample and would purchase between two and three kilograms. While they were speaking, there arrived at the Duverglas apartment an individual later identified as Penco. Duverglas told Solovay over the phone that the individual who had just arrived was Duverglas' supplier who would provide the cocaine for sale to Solovay. In a series of phone conversations the same day, Duverglas and Solovay discussed arrangements for a sale of three kilograms of cocaine to take place that evening. Later in the day during a meeting at a midtown restaurant in Manhattan, they reduced the amount of the sale to one and one-half kilograms. They closed negotiations for the deal, but only after Duverglas had received a phone call from Mespoulede with whom Penco had spoken at the Duverglas apartment.
At 6 P.M. that evening Solovay phoned Duverglas at the latter's apartment, told him that he had the money and that he was ready to go through with the deal. Duverglas told Solovay to come to the apartment in an hour when he expected his "man" to be there with the cocaine. Solovay arrived at the apartment shortly after 7 P.M. Duverglas told him that his "man" had not yet arrived with the cocaine but that he would be there shortly. Solovay left the apartment after Duverglas told him to phone the apartment at quarter-hour intervals. Between Solovay's first and second calls, Penco arrived at the Duverglas apartment carrying what agents outside observed to be a "bulging" briefcase. He was accompanied by a small dog.*fn3
When Solovay phoned the apartment shortly thereafter, Duverglas told him, "the package has arrived, the connection brought the package". He told Solovay to come to the apartment in 20 minutes. Solovay did.
In the meanwhile Mespoulede had cut the cocaine which Penco had brought to the apartment. He used inositol, a non-narcotic white powder frequently used to dilute narcotics. He then placed the mixture in a bag.
Upon Solovay's arrival, Duverglas showed him what he said was one and one-eighth kilograms of cocaine, rather than the one and one-half promised. Solovay expressed his annoyance, took a sample of the cocaine with him and left. He later phoned Duverglas to call off the purchase that evening, stating that his people were upset with the many changes in the weight of the cocaine.
While Solovay and Duverglas were negotiating the purchase and sale of cocaine, another, more complex, drama was unfolding as the result of the surveillance of Solovay and the Duverglas apartment which had been maintained by a team of ...