Appeal from a judgment of conviction entered in the United States District Court for the Eastern District of New York (Raymond Dearie, Judge). Affirmed in part and reversed in part.
Winter and Miner, Circuit Judges,*fn* Hon. Franklin S. Billings, Jr. District Judge.
Hon. Franklin S. Billings, Jr., District Judge :
Defendant-appellant Jorge Feliz-Cordero ("Cordero") and defendant-appellant Alexander Feliz-Encarnacion ("Encarnacion") each appeal from a judgment of conviction entered in the United States District Court for the Eastern District of New York. After jury trial before Judge Raymond Dearie, District Judge, defendants were each convicted of one count of conspiracy to possess cocaine base with intent to distribute in violation of 21 U.S.C. § 846 (1982); two counts of possession of cocaine base with intent to distribute in violation of 21 U.S.C. § § 841(a)(1) and 841(b)(1)(B)(iii) (1982 & Supp. IV 1986); one count of distribution of cocaine base in violation of 21 U.S.C. § § 841(a)(1) and 841(b)(1)(B)(iii); and one count of carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § § 924(c)(1) and 924(c)(2) (1988).
Defendant Feliz-Cordero was sentenced to a seven year prison term on each of the conspiracy, possession, and distribution counts, to run concurrently, and a consecutive five year sentence on the firearm count. Defendant Feliz-Encarnacion was sentenced to a five year prison term on each of the first four counts, to run concurrently, and a consecutive five year sentence on the firearm count.
On appeal, defendants contend that the trial court erred in failing to suppress physical evidence seized as a result of a search warrant which defendants contend was issued absent probable cause. Defendants also contend on appeal that the evidence was insufficient to sustain a conviction on the firearm count. 18 U.S.C. § 924(c)(1). We affirm the district court's denial of defendants' motion to suppress physical evidence and reverse defendants' respective convictions on the firearm count.
On February 13, 1987, Bureau of Alcohol, Tobacco and Firearms ("ATF") Special Agent Ravelo arranged to purchase 200 vials of "crack" (cocaine base) from Pedro Muniz and Fernando Ubiles. Agent Ravelo drove Muniz and Ubiles to 144 Wyckoff Avenue, Brooklyn, New York and waited outside the building while Muniz entered and went to Apartment 3, defendant Cordero's residence. Cordero was not there, so Muniz went upstairs to Apartment 5, defendant Encarnacion's residence. Muniz had been to both apartments previously and had seen both defendants at that location (the defendants are brothers). On this occasion, defendant Encarnacion was present in his apartment and Muniz obtained 150 vials of "crack" from him. Muniz returned to Agent Ravelo's automobile, showed Ravelo the vials, and handed the vials to Ubiles. Ravelo then drove Muniz to another location where Muniz was to procure the additional 150 vials of "crack". Muniz exited the automobile and Ravelo lost contact with him. Agent Ravelo arrested Ubiles and seized the 150 vials of "crack".
Ravelo returned to the Wyckoff Avenue address where he met defendant Encarnacion outside the building. Ravelo asked Encarnacion if he had seen Muniz because he wanted to obtain the additional 50 vials of "crack". Encarnacion told Ravelo he was in the process of cooking "crack" and to return in 30 minutes and the 50 vials would then be ready for sale. Ravelo continued to search for Muniz, found him a few minutes later, and arrested him. Muniz quickly agreed to cooperate and was debriefed by Agent Ravelo's partner, ATF Special Agent Raffa. During the debriefing Muniz told the agents he obtained the "crack" from Apartment 6 on the third floor of 144 Wyckoff Avenue, that the apartment was directly above defendant Cordero's apartment, and had a metal door with a suitcase-style handle.
Muniz was outfitted with a recording transmitter. While wearing the transmitter, Muniz first went to his own apartment. As he was leaving his apartment building, Muniz unexpectedly met both defendants on the street. Part of the conversation between Muniz and Cordero was monitored. It concerned Muniz's debt for the 150 vials of "crack" he had obtained in the morning. Muniz stated he had not gotten the money yet and asked the defendants to loan him a weapon so that he could obtain the money. The defendants refused Muniz's request. All of the parties, however, agreed to meet later at 144 Wyckoff Avenue. Muniz, still wearing the transmitter, returned to Apartment 3 where both defendants were waiting. During this monitored conversation, the prior "crack" transaction was discussed, including the money owed to defendant Cordero. They also discussed the rising price of "crack" and the gun Cordero kept. Cordero again refused that request to loan him the gun.
On February 14, 1987, based on information obtained from Muniz, the ATF agent observations, and the taped conversations, Agent Raffa swore to an affidavit in support of a search warrant for Apartments 3 and 6. Subsequently, on February 17, 1987, after discovering that Apartment 5 was the only one directly above Cordero's apartment, Agent Raffa swore to an amended affidavit in support of a search warrant for Apartment 5 rather than Apartment 6.
On February 15, 1987, Muniz returned to Apartment 3, met defendant Encarnacion, and gave him $200.00. On February 16, 1987, Muniz telephoned defendant Cordero and promised to pay his debt on the following day. On February 18, 1987, ATF agents and New York City Police officers executed the search warrant on Apartments 3 and 5. Both defendants were then arrested. In Apartment 3 the agents found, among other things, a small quantity of cocaine, drug records, approximately $11,000 in cash, a beeper, and, in a bedroom dresser drawer, a .38 caliber Smith & Wesson revolver loaded with 5 rounds of ammunition, and additional rounds of ammunition.
In Apartment 5 the agents found, among other things, cocaine and cocaine base, plastic vials, a scale, a hot plate, strainers, straight edge razor blades, and a quantity of chemicals used to cut ...