Appeal from a judgment entered in the United States District Court for the Eastern District of New York following a jury trial before Joseph M. McLaughlin, Judge, convicting defendant of conspiring to distribute, importing, and possessing with intent to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846, 952(a), 960(a)(1), and 960(b)(1)(A).
Timbers, Meskill and Kearse, Circuit Judges.
Defendant Riad Youssef Rahme appeals from a judgment of the United States District Court for the Eastern District of New York, entered after a jury trial before Joseph M. McLaughlin, Judge, convicting him on one count each of conspiring to distribute heroin, in violation of 21 U.S.C. §§ 841(b)(1)(A), 846 (1982 & Supp. II 1984); importing heroin, in violation of 21 U.S.C. §§ 952(a), 960(a)(1), 960(b)(1)(A) (1982 & Supp. II 1984); and possessing heroin with intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) (1982 & Supp. II 1984). Rahme was sentenced to three concurrent 10-year terms of imprisonment and a special assessment of $150. On appeal, he contends principally that the district court erred in denying his motion to suppress certain evidence seized in a warrantless search and in admitting at trial testimony concerning statements made by an alleged coconspirator. Finding no merit in his contentions, we affirm the judgment of conviction.
The facts as found by the district court in denying Rahme's motion to suppress do not appear to be in substantial dispute. On February 20, 1986, Rahme and two codefendants, George Issa and Youssef Boutros, went to a hotel at LaGuardia Airport where Issa negotiated a narcotics transaction with an undercover agent of the United States Drug Enforcement Agency ("DEA"). When Boutros removed a quantity of heroin from his shoes, he, Issa, and Rahme were arrested.
During a search incident to the arrests, a key to Room 418 at the Travel Inn Hotel in Manhattan was found in the possession of Rahme. Boutros and Rahme told DEA agents they had been sharing that room. The agents apparently made no effort to seek evidence at the hotel until several days later.
In the meantime, on February 21, 1986, when no one had reserved or paid for another night in Room 418 by the noon check-out time, the Travel Inn's security manager, Jack Grant, went to the room, knocked on the door, and, hearing no response, opened it with a passkey. Upon entering and seeing luggage, Grant left the room intact but plugged the lock so that no one, including the former occupants, could enter without going to the hotel desk first.
On February 22, the hotel having heard nothing further from Room 418's last occupants, Grant returned to the room with two maids. The luggage there included a blue suitcase with Rahme's name on it, lying open on the bed, and a black briefcase in a dresser drawer. All of the luggage was removed from the room and locked in the hotel's storage area.
On February 24, 1986, when DEA Special Agent Beatrice Leone contacted the hotel seeking records as to whether Rahme or Boutros had stayed there, she was informed that the hotel had taken possession of the luggage found in Room 418. Leone informed Grant that Rahme and Boutros had been arrested, and she was given permission to take the luggage. In a DEA inventory search, the black briefcase was found to contain a number of documents and a small amount of heroin; the blue suitcase bearing Rahme's name was found to contain documents of evidentiary value. At no time prior to the DEA's seizure of the luggage had Rahme, personally or through a representative, attempted to pay the overdue room rent or to retrieve the luggage left in Room 418.
The district court rejected Rahme's contention that the warrantless seizure and search of the two bags violated his rights under the Fourth Amendment, ruling that Rahme lacked standing to challenge the legality of the search and seizure. Relying on United States v. Cowan, 396 F.2d 83 (2d Cir. 1968), the court held that Rahme had no privacy interest in the seized items because he had failed to pay the required rent on the room, and hence the bags were lawfully in the possession of the hotel pursuant to its lien for unpaid rent under N.Y. Lien Law § 181 (McKinney 1966). The district court held, alternatively, that even if Rahme had a privacy interest in the seized items, it was one shared with the hotel and that the hotel had the power to consent to the search on behalf of both. Accordingly, the government was permitted to introduce into evidence against Rahme the two bags and certain of their contents.
After the arrests, Boutros and Issa had pleaded guilty to charges against them; only Rahme went to trial. The evidence at trial included the testimony of Issa that Boutros had stated to him on February 17, 1986, and on February 20, 1986, that the source for the heroin Boutros would supply to Issa was "Rahme's family" or "the Rahme people." Issa testified that on the latter occasion Boutros also told Issa not to tell Rahme that Issa knew Rahme was the source.
The jury found Rahme guilty on the possession, importing, and conspiracy counts and he was sentenced as indicated above.
On appeal, Rahme challenges the correctness of the district court's denial of the suppression motion and contends that Issa's testimony as to Boutros's statements should have been ...