Appeal from a judgment of conviction entered in the United States District Court for the Eastern District of New York following a jury trial before the Honorable Charles P. Sifton. Appellants, convicted of a count of conspiracy with intent to distribute and one of two counts of possession with intent to distribute cocaine, attack the trial court's suppression hearing factual findings, allege that the evidence presented at trial was insufficient to sustain a verdict and claim a denial of fair trial due to erroneous admission of prejudicial evidence.
Meskill and Winter, Circuit Judges, and McCurn, District Judge.*fn*
A. The Suppression Hearing
Judge Sifton, after conducting a pretrial hearing, denied defendants' motions to suppress the warrantless seizure of physical evidence from inside an apartment and from the trunk of a parked vehicle. It is claimed that the factual findings upon which Judge Sifton based his denial were clearly erroneous. It is to the trial court's crediting of the government's factual account that the appellants assign error. That factual account follows.
In April of 1987, Detectives Thomas Healy and Michael Falciano of the New York City Police Department, involved in the investigation of a drug related homicide, found a business card among the victim's effects which bore the handwritten notation: "Jorge 8708 Apt 8C Justice." Recognizing this address as an apartment building on Justice Avenue in Queens, Healy and Falciano at approximately 4:00 p.m. on April 24, 1987 knocked and rang a buzzer at the apartment door. A voice from within asked who was there, and Detective Healy responded, "Jorge." Gabriel Rios opened the door and the detectives identified themselves as police officers. Permission to enter was granted by Gabriel Rios. Once in the apartment, the officers made the acquaintance of the other occupant present at the time, appellant Tamayo. The detectives once again identified themselves as police officers and requested permission to sit down and ask questions. After the occupants concurred, the group engaged in light conversation about soccer and Gabriel Rios' plans to join the Air Force. Throughout this conversation, the occupants were permitted to move freely about the apartment. Gabriel Rios went into the kitchen on two occasions to tend to food he was preparing.
After explaining that they were involved in an investigation of a drug related homicide, the officers inquired whether the occupants had any drugs or guns, and upon receipt of a negative response, were granted permission to search the apartment. As a result of that search, the detectives retrieved a suitcase containing eight Kilograms of cocaine, triple beam scales, a handgun, money counting machines and several ledgers purportedly detailing drug related transactions. The ledgers were in plain view of the officers prior to the search.
During the search detective Healy inspected the balcony of the apartment. While there he noticed a vehicle pull into parking space 13. Healy had determined that parking space 13 belonged to the occupants of apartment 8C. A few minutes later, the doorbell to the apartment rang. Detective Healy prepared to receive the entrant by standing by the door with his firearm held at his side. Appellant Jorge Rios, whom Healy recognized as the driver of the car in space 8C, entered, appeared startled, and dropped a bag he was carrying. The bag was not completely closed due the presence of car jumper cables. Because of this fortuitous circumstance, Healy was able to peer into the bag and observe what appeared to be cocaine. Jorge Rios was then arrested and his car searched. That search resulted in the seizure of 91 grams of cocaine.
Appellants assert that the officers' testimony was so implausible that Judge Sifton's findings must be set aside. They argue that the testimony that they consented to the search was incredible, and that contrary to Healy's testimony, they would have attempted to hide suspicious items, such as the ledgers and the cocaine in Jorge's bag, from the "plain view" of the officers. They also argue that the officers' testimony concerning their own behavior was irrational. Appellants contend that these seasoned officers, investigating a murder, would not have casually sat around the living room discussing sports and the Air Force, nor would they have permitted Gabriel Rios to venture into the kitchen unescorted, where he could have destroyed evidence or armed himself. Moreover, they maintain that the officers would not have approached Jorge Rios' entry into the apartment in the manner described. They argue that Healy would have had his gun pointed, and not at his side, because by that time the officers had found a gun in the kitchen and arrested Gabriel and Fabio. Appellants also quarrel with Healy's testimony regarding the car. They maintain that Healy's knowledge about parking spot 13 and his happenstance location on the balcony when Jorge pulled into that spot are too unlikely to believe.
Appellants complete their argument by pointing to a series of prosecutorial investigations engaged in by officers Healy and Falciano wherein lady luck seems to have been ever present at their side. Detectives are invited in, often to see cocaine or other contraband in plain view; consent is given to search; and bags carrying cocaine are either open so that the cocaine is visible or are dropped to spill narcotics. Appellants claim that this evidence shows that officers Healy and Falciano are engaged in a pattern of fabrication, and that Judge Sifton was clearly wrong in finding their testimony to be credible.
The trial court's findings will not be overturned absent a showing that they were clearly erroneous. United States v. Zapata-Tamallo, 833 F.2d 25, 27 (2d Cir. 1987). This is particularly true where, as here, the basis of the findings turns on the credibility of the witnesses. Id. In order to reverse, the appellate court must be left with a definite and firm conviction that a mistake has been committed. Miles v. New York State Teamsters Conf., 698 F.2d 593, 600 n. 5 (2d Cir. 1983). Nevertheless, the trial court's credibility determinations are not completely immune from appeal. Anderson v. Bessemer City, 470 U.S. 564, 575, 84 L. Ed. 2d 518, 105 S. Ct. 1504 (1985). This is so because:
factors other than demeanor and inflection go into the decision whether or not to believe a witness. Documents or objective evidence may contradict the witness' story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it. Where such factors are present, the court of appeals may well find clear error even in a finding purportedly based on a credibility determination.
Appellants arguments do cast some doubt on the credibility of the officers' testimony. Nevertheless, we are not left with a "definite and firm conviction that a mistake has been made." The record reveals that Judge Sifton was presented with and considered the question of the officers' credibility. He asked questions of the witnesses, required a prosecution rebuttal, and adjourned the hearing to allow the defendants to bring in evidence regarding other suspicious prosecutions. His oral opinion also addresses the credibility ...