USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1950
UNITED STATES,
Appellee,
v.
ABOUBACAR DIALLO,
Defendant, Appellant.
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No. 93-1951
UNITED STATES,
Appellee,
v.
AMADOU DIARRA,
Defendant, Appellant.
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No. 93-2147
UNITED STATES
Appellee,
v.
MOHAMED SOUARE,
Defendant, Appellant.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
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Before
Selya and Cyr, Circuit Judges,
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and Pettine,* Senior District Judge.
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Francis R. Williams, by Appointment of the Court, for appellant
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Mohamed Souare.
William J. Murphy, by Appointment of the Court, for appellant
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Amadou Diarra.
Damon M. D'Ambrosio, by Appointment of the Court, for appellant
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Aboubacar Diallo.
Zechariah Chafee, Assistant United States Attorney, with whom
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Edward J. Gale, United States Attorney, was on brief for appellee.
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July 14, 1994
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*Of the District of Rhode Island, sitting by designation.
PETTINE, Senior District Judge, Defendants
PETTINE, Senior District Judge
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Mohamed Souare, Aboubacar Diallo and Amadou Diarra were
convicted under a two-count indictment for possession of
heroin with intent to distribute and conspiracy to possess
heroin with intent to distribute in violation of 21 U.S.C.
841(a)(1) and 846 (1988). Defendants Diarra and Diallo
appeal the district court's denial of their motion to
suppress evidence recovered after their arrests. Defendant
Souare also appeals, arguing that the district court erred
in denying his motion for a separate trial. For the reasons
stated below, we affirm the district court.
I.
Background
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In early October 1992, Detective Thomas Verdi of
the Providence Police Department received information from a
confidential informant. The informant told Detective Verdi
that three African men had recently set up a heroin sales
operation at 136 Harrison Street in Pawtucket, Rhode Island.
The informant told police that the men were part of an
African heroin ring based in New York City. The informant
pointed out the three men involved in the heroin operation
and said he knew them as "Mohamed," "Lye," and "Sekou"
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(later determined to be Souare, Diarra and Diallo). Over
the next month, Detective Verdi followed the defendants from
136 Harrison Street as they travelled together to various
locations in Providence. Detective Verdi arranged for a
reliable third party, who was cooperating with the police,
to buy heroin from defendant Souare. Defendants Diallo and
Diarra were present during this buy.
On November 10, 1992, the informant told Detective
Verdi that Mohamed had received a large shipment of pure
heroin and that Mohamed, Lye and Sekou were to meet a
customer for the heroin that night in Providence. At 6:30
p.m. that night, Detective Verdi and Sergeant Pedchenko set
up surveillance at 136 Harrison Street. The three
defendants, plus a fourth man identified later as Omar
Bangoura, came out of the front door of 136 Harrison Street.
Diarra, Diallo and Bangoura got into a red Toyota parked
next to the building. Souare walked up and down the street,
looking around. He apparently did not notice the policemen,
returned to the red Toyota, and drove off. Once on the
street, Souare drove normally for awhile, then suddenly
accelerated, ran two stop signs, and quickly turned right
onto a busy street. He then turned left from the right hand
lane which required crossing three lanes of traffic, and
sped down an entrance ramp to I-95. Detective Verdi, from
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his previous surveillance of Souare, knew that Souare was
familiar with the streets in that area and viewed the
unusual driving as an attempt to evade anyone who might be
following. Souare turned off at the next exit and turned
into the driveway of a house one or two blocks from the
exit.
Approximately fifteen minutes later, during which
time the four men may or may not have entered the house, the
men left. This time, Souare was alone in the red Toyota,
followed by a blue Ford driven by Diallo with Bangoura in
the front passenger seat and Diarra in the rear seat.
Souare drove the wrong way up a one-way street, down a
deserted street and stopped under a bridge. The blue Ford
followed each of these moves and waited under the bridge
with the red Toyota. After waiting, the cars returned to I-
95 and drove in the slow lane at 45 miles per hour for
several exits. At each exit they passed, they would turn on
the turning signals as if they were exiting but then would
resume their slow driving. When the two cars finally exited
the highway, Sergeant Pedchenko called for uniformed backup
to make the arrests.
Patrolman Sion answered the call and pulled over
the blue Ford at the direction of Sergeant Pedchenko. After
Pedchenko and Verdi arrived, the three police officers went
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to the car and ordered the occupants out. As Diarra got out
of the rear seat, he threw a hand-held calculator to the
floor. When Sergeant Pedchenko attempted to pat down
Diarra, Diarra resisted and pushed away the sergeant. The
three men were handcuffed, placed in Patrolmen Sion's car,
and driven up the street to a parking lot. Pedchenko and
Verdi followed.
While in Sion's patrol car, the three men were
handcuffed with their hands behind their backs. Sion looked
in the mirror and saw that Diarra, in the middle, had turned
his back and cuffed hands toward Diallo. Diallo had turned
to face Diarra's back and hands. Sion heard the sound of a
plastic bag crunching and looked over his shoulder at the
men. Diarra was using his hands, behind his back to pull a
white plastic bag up out of the front of Diallo's pants.
Sion ordered the men to stop but they used their hands to
stuff the bags between the seat back and the seat. Sion
pulled into the parking lot and the prisoners were taken
from the rear seat. The rear seat was pulled up and the
police found eleven bags of heroin. At the same time,
Souare was pulled over by another surveillance car and
arrested. Souare had no heroin in his car or on his person.
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Prior to trial, defendants Diarra and Diallo filed
a motion to suppress the heroin discovered in the car. They
argue that they were under arrest when the police handcuffed
them at the scene of the car-stop and that the arresting
officers did not have probable cause to arrest them.
Defendants Souare and Diallo filed motions to sever their
trials from the trials of their co-defendants, alleging
prejudicial joinder.1 District Judge Ernest Torres denied
both motions in oral decisions from the bench.
II.
Motion to Suppress
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Diarra and Diallo contend there was no probable
cause to arrest them and that the heroin discovered as a
result of the arrests should be suppressed.2 The
definition of probable cause is well established and not in
dispute in this case.
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1 Defendant Diallo does not appeal the denial of his
motion for a separate trial.
2 There appears to have been some dispute below as
to whether the defendants were arrested or merely detained
for an investigatory stop at the time they were placed in
Sion's car. On appeal, the government seems to accept the
fact that the men were under arrest prior to the discovery
of the heroin. We therefore will assume that the defendants
were under arrest when placed in Sion's car.
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"[E]very arrest, and every seizure having the
essential attributes of a formal arrest, is unreasonable
unless it is supported by probable cause." Michigan v.
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Summers, 452 U.S. 692, 700 (1981). In Illinois v. Gates,
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462 U.S. 233 (1983), the Supreme Court held that probable
cause should be determined under a "totality-of-the-
circumstances" test. In doing so, the Court stated that
"probable cause is a fluid concept - turning on the
assessment of probabilities in particular factual contexts."
Id. at 232. The Court rejected the prior test for probable
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cause which focused "analysis into two largely independent
channels - the informant's 'veracity' or 'reliability' and
his 'basis of knowledge.'" Id. at 233. Under the totality-
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of-the-circumstances test, "a deficiency in one may be
compensated for, in determining the overall reliability of a
tip, by a strong showing as to the other, or by some other
indicia of reliability." Id. Further, "[w]here the
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standard is probable cause, a search or seizure of a person
must be supported by probable cause particularized with
respect to that person." Ybarra v. Illinois, 444 U.S. 85,
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91 (1979). "The quantum of information which constitutes
probable cause [is] evidence which would 'warrant a man of
reasonable caution in the belief' that a felony has been
committed." Wong Sun v. United States, 371 U.S. 471, 479
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(1963) (citations omitted). "The substance of all the
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definitions of probable cause is a reasonable ground for
belief of guilt. And this means less than evidence which
would justify condemnation or conviction." Brinegar v.
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United States, 338 U.S. 160, 175 (1949) (citations omitted).
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See also United States v. Drake, 673 F.2d 15, 17 (1st Cir.
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1982).
The existence of probable cause must be determined
in light of the information known to the police at the time
of the arrest. Maryland v. Garrison, 480 U.S. 79, 85
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(1987). "'[T]he existence of probable cause is to be
evaluated on the basis of the collective information of the
law enforcement officers engaged in a particular
investigation." United States v. Curry, 751 F.2d 442, 446
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(1st Cir. 1984), cert. denied sub nom., United States v.
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Silvestri, 487 U.S. 1233 (1988). See also United States v.
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Paradis, 802 F.2d 553, 557 (1st Cir. 1986). It is obvious,
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therefore, that evidence recovered subsequent to an arrest
cannot form the basis of probable cause for that arrest.
Maryland v. Garrison, supra, at 85. Thus, we must determine
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whether the information available to the police prior to the
stop of the car supports the district court's finding of
probable cause.
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In making this determination, we do not "conduct a
de novo determination of probable cause, but [rather]
determine whether there is substantial evidence in the
record" to support the district court's finding. United
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States v. Badessa, 752 F.2d 771, 773 (1st Cir. 1985). "The
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findings of the district court after a hearing on a pretrial
motion to suppress are binding on appeal unless they are
clearly erroneous." United States v. Morris, 977 F.2d 677,
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680 (1st Cir. 1992), cert. denied, 113 S. Ct. 1588 (1993).
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With these standards in mind, we turn to the district
court's decision.
The district court described the relevant facts as
follows.
[The police] had information from a
confidential informant who had proven
reliable. They had some admitted
hearsay testimony from the confidential
informant that the three individuals to
whom he had made the controlled sale
previously were the three Defendants.
He had identified the three Defendants
as being the individuals involved in the
heroin ring, predicted that they were
going to make a sale that night and sure
enough they appeared together, acted in
suspicious manner, drove in a way that
was, obviously, calculated to evade
surveillance.
Tr., Suppression Hearing, 4/30/93 at 51-52. Based on these
facts, the district court concluded "if that doesn't add up
to probable cause to arrest them, then it's difficult to
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imagine what does." Id. at 52. These factual findings are
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not clearly erroneous and thus we must accept them as true.
Defendants raise three arguments to the finding of
probable cause, all based on purported flaws in the
information from the informant. First they argue that there
was no corroboration of the informant's tip until after the
arrests when the heroin was discovered. We first note that
under the standard enunciated in Gates, the police do not
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have to corroborate every detail of the informant's tip.
Secondly, the informant was known to the police to be
reliable. Further, the informant correctly reported the
location of the three men, the type of car that Souare would
be driving and that the three men would be traveling
together that night. As the district court stated, the
three men did appear together, act suspiciously, and attempt
to evade any followers. The district court's factual
findings, which we are bound to accept, support a finding of
probable cause.
Defendants also argue that the informant's tip was
not sufficiently detailed to allow the police to rely upon
it and was flawed in the details that it did provide.
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According to defendants, the information was unreliable
because the informant stated that there would be three men
in a red Toyota when in actuality there were four men in two
cars. The inconsistencies between the informant's
information and the reality of the situation were not of
such importance that the information could be concluded to
be incorrect. The informant was correct as to the
identities of three of the four men along with the night the
activity would take place and one of the vehicles used. "A
tipster need not deliver an ironclad case to the authorities
on the proverbial silver platter. It suffices if . . . a
prudent law enforcement officer would reasonably conclude
that the likelihood existed that criminal activities were
afoot, and that a particular suspect was probably engaged in
them." United States v. Chapdelaine, 616 F. Supp. 522, 526
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(D.R.I. 1985), aff'd, 795 F.2d 75 (1st Cir. 1986). Such was
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the case here.
The factual findings of the district court are not
clearly erroneous and these findings would lead a prudent
police officer reasonably to believe that criminal activity
was occurring. We therefore hold that probable cause
existed to support the arrests and the district court's
denial of the motion to suppress is affirmed.
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III.
Motion for a Separate Trial
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Defendant Souare filed a motion for a separate
trial prior to the beginning of the trial. The district
court denied the motion and all three defendants were tried
together. Souare appeals, alleging that he suffered undue
prejudice from the joint trial. In denying the motion to
sever, the district court made the following observations.
[T]here hasn't been any satisfactory
reason given as to why severance should
be granted in this case. . . . There has
been no suggestion as to any reason why
these cases should be severed and there
are a lot of reasons why they ought to
be joined. One, as [the government] has
just pointed out, the three Defendants
are charged with conspiracy and
generally speaking coconspirators are
tried together.
Secondly, they are all charged with
possession involving the same incident.
And to sever these cases would result in
a needless duplication of evidence. We
would in effect have three carbon copies
[sic] trials of each other. So the
motions to sever will be also denied.
Tr., Suppression Hearing, 4/30/93 at 60-61.
In reviewing a denial of a motion to sever, we
will reverse only upon a showing of an abuse of discretion.
United States v. Fusaro, 708 F.2d 17, 25 (1st Cir.), cert.
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denied, 464 U.S. 1007 (1983). Abuse of discretion will be
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found "only where the failure to sever deprives defendant of
a fair trial and results in a possible miscarriage of
justice." United States v. Cyr, 712 F.2d 729, 735 (1st Cir.
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1983). "Reversal of a conviction on the ground that a
district court abused its discretion by denying a motion to
sever is extremely rare." United States v. Scivola, 766
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F.2d 37, 41 (1st Cir. 1985). The burden is on the appellant
to prove that he suffered from "prejudice greater than that
which necessarily inheres whenever multiple defendants . . .
are jointly tried." United States v. Walker, 706 F.2d 28,
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30 (1st Cir. 1983). Prejudice in this context "means more
than just a better chance of acquittal at a separate trial."
United States v. Boylan, 898 F.2d 230, 246 (1st Cir.), cert.
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denied, 498 U.S. 849 (1990).
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Souare bases his allegation of prejudice on a
purported disparity of evidence in the cases against his co-
defendants Diarra and Diallo and the case against himself.
He points out that he was not in the car from which the
heroin was recovered nor was any heroin found in his car or
on his person. He further argues that the government's case
against him was "tenuous at best" and was strengthened by
inferences drawn from the evidence against his co-
defendants. Beyond the difference in the amount of proof
against him and his co-defendants, Souare contends that the
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case against him was based on different evidence or proof
than the cases against Diarra and Diallo.
Souare contends that there was no evidence of
actual possession of heroin on his part and any case had to
be premised upon the unusual driving, the information from
the informant, and his association with his co-defendants.
Although Souare proceeds to attack the strength of each of
these pieces of evidence, such attacks are irrelevant. The
government's case against Souare for possession of the
heroin rested on a theory of constructive possession:
"possession was joint among the three men and . . . Souare
exercised dominion and control by knowingly leading the
other two men from Pawtucket to Providence." Aple. Br. at
19. Regardless of the strength of this theory, any evidence
relating to possession by defendants Diarra and Diallo would
need to be introduced against Souare. The same is true for
the conspiracy charge. The evidence concerning the
activities of defendants Diarra and Diallo was a necessary
part of the proof that Souare was a member of the
conspiracy. See United States v. Cresta, 825 F.2d 538 (1st
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Cir. 1987) (fact that a substantial portion of the evidence
is not directly related to the defendant does not make it
automatically unlawful to try him with other defendants),
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cert. denied sub nom., Impemba v. United States, 486 U.S.
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1042 (1988).
Thus, Souare has not shown that there would be any
difference in the evidence presented at the joint trial and
the evidence that would have been presented at a separate
trial. "[W]here separate trials would have necessarily
involved repetitive use of most of the same evidence and
same facts, we find no possibility of such an abuse of
discretion absent a clear showing of substantial prejudice
to the defendant." United States v. Ciampaglia, 628 F.2d
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632, 643 (1st Cir.), cert. denied, 449 U.S. 956 (1980).
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Souare has not demonstrated that the evidence would differ
between the joint trial and separate trials, nor has he made
a clear showing of substantial prejudice. We can find no
abuse of discretion in denying the motion to sever.
The decision of the district court is therefore
AFFIRMED.
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