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United States v. Gallo-Roman

decided: April 8, 1987.

UNITED STATES OF AMERICA, APPELLEE,
v.
ADALBERTO GALLO-ROMAN, DEFENDANT-APPELLANT



Appeal from a judgment of the United States District Court for the Eastern District of New York, Weinstein, Chief Judge, convicting appellant after a jury trial of conspiracy to possess cocaine with intent to distribute and of attempted possession of cocaine with intent to distribute. Affirmed as modified.

Author: Pierce

Before: FEINBERG, Chief Judge, TIMBERS and PIERCE, Circuit Judges.

PIERCE, Circuit Judge:

Appellant, Adalberto Gallo-Roman, appeals from a judgment of the United States District Court for the Eastern District of New York, Weinstein, Chief Judge, entered July 2, 1986, convicting him, after a jury trial, of conspiracy to possess cocaine with intent to distribute and of attempted possession of cocaine with intent to distribute, in violation of 21 U.S.C. ยงยง 841(a)(1), 841(b)(1)(B), and 846. At a pretrial suppression hearing, the district court denied appellant's motion to suppress evidence seized in a warrantless search, holding that exigent circumstances justified the search. The district court also denied appellant's motion to suppress one of his post-arrest oral statements to an agent which was not recorded in the agent's subsequent written report, holding that government agents are not required to make a full contemporaneous written record of all of a charged person's oral statements. In sentencing appellant, the district court imposed two concurrent six-year terms of imprisonment, to be followed by a ten-year special parole term; also, a fine of $50 on each of the two counts.

On appeal, appellant argues, first, that there were no exigent circumstances to justify the warrantless search; second, that the government agent's failure to record in writing a portion of appellant's post-arrest oral statement requires suppression of that portion of the statement; and, third, that the district court erred in imposing a special parole term as part of appellant's sentence.

We hold that exigent circumstances justified the warrantless entry into and search of appellant's apartment. We also hold that failure to make a written record of part of an oral statement does not justify exclusion of testimony about the unrecorded part of that oral statement. Further, we modify the judgment of conviction to vacate the special parole term in the sentence imposed.

The judgment of conviction, as modified, is affirmed.

BACKGROUND

This case results from a warrantless search of appellant's apartment during an attempted controlled delivery by agents of the Drug Enforcement Administration ("DEA") on March 12, 1986. The events leading up to that search are briefly summarized below.

In January 1986, a United States Customs mail technician in Florida intercepted two pieces of mail and addressed for delivery in New York and found that they contained cocaine secreted between photographs and false backs. The envelopes and their contents were forwarded to the DEA in New York for a controlled delivery.

When the two envelopes arrived in New York, Special Agent Dean Kiernan set one aside not to be used in the controlled delivery and repackaged the five photographs contained in the other. He removed the cocaine from those photographs and replaced it with a mixture of trace amounts of cocaine and dextrose. After repackaging the five photographs, the envelope was resealed.

The envelopes were addressed to J.Q.R., P.O. Box 299, Corona, New York. On the morning of March 12, 1986, Agent Kiernan, posing as a postal inspector, placed a call to the address given on the postal box rental agreement, and was informed later that morning by return phone call that someone would be coming to the post office to claim the envelope being used in the controlled delivery. One Rosalba Agudelo arrived at the post office and sought to claim the envelope, presenting a package claim check which had been left in Box 299. When asked if she knew who the addressee, J.Q.R., was, Agudelo replied that the person was a friend who had asked her for permission to use the postal box. Further, responding to Agent Kiernan's request that she leave her address to verify postal records, Agudelo filled out a form with an address in Woodside, Queens. She was then given the envelope and left the post office.

Agent Kiernan, mistakenly believing that Agudelo would go to the address given on the box rental agreement, went to that location, a shoe repair shop on 111th Street in Queens. Other agents, however, actually followed Agudelo from the post office to a different location, the address she had given in Woodside. Kiernan was informed that Agudelo had in fact gone to the Woodside address and joined the agents already there approximately twenty minutes after Agudelo had entered her apartment. Immediately upon Kiernan's arrival, the agents rang the door bell and Agudelo opened the door. The agents then identified themselves as police and entered the apartment. Agent Kiernan proceeded straight down the hall directly in front of the door toward the master bedroom at the end of the hall. On the bed in the bedroom he observed the envelope which Agudelo had claimed from the post office. At the same time, he heard a noise resembling the sound of a toilet bowl being flushed coming from a bathroom adjacent to the master bedroom. Upon entering the bathroom, Kiernan saw appellant Gallo-Roman standing above the toilet bowl. In the toilet bowl was a small plastic packet which contained the cocaine that had been left as a trace sample. Also, sitting on the sink was one of the photographs which had not yet been opened. Appellant was then arrested and advised of his rights.*fn1

Following his arrest, Gallo-Roman made certain incriminating oral statements to Agent Kiernan while still in the apartment. Among other statements, he stated that he could introduce the DEA agents to a cocaine dealer. Kiernan's subsequent written report recorded some but not all of Gallo-Roman's oral statements. ...


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