
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1950                                    UNITED STATES,                                      Appellee,                                          v.                                  ABOUBACAR DIALLO,                                Defendant, Appellant.                                _____________________        No. 93-1951                                    UNITED STATES,                                      Appellee,                                          v.                                    AMADOU DIARRA,                                Defendant, Appellant.                                 ___________________        No. 93-2147                                    UNITED STATES                                      Appellee,                                          v.                                   MOHAMED SOUARE,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Ernest C. Torres, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                            Selya and Cyr, Circuit Judges,                                           ______________                         and Pettine,* Senior District Judge.                                       _____________________                                 ____________________            Francis R. Williams, by Appointment of the Court, for appellant            ___________________        Mohamed Souare.            William  J. Murphy,  by  Appointment of  the Court,  for appellant            __________________        Amadou Diarra.            Damon M. D'Ambrosio, by  Appointment of the  Court, for  appellant            ___________________        Aboubacar Diallo.            Zechariah  Chafee, Assistant  United  States  Attorney, with  whom            _________________        Edward J. Gale, United States Attorney, was on brief for appellee.        ______________                                 ____________________                                    July 14, 1994                                 ____________________        _____________________        *Of the District of Rhode Island, sitting by designation.                       PETTINE, Senior District Judge,   Defendants                       PETTINE, Senior District Judge                                _____________________             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                                      __________                       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"                                         -3-                                          3             (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                                         -4-                                          4             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                                         -5-                                          5             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.                                         -6-                                          6                       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                                  __________________                       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.                                              ____________________             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.                                         -7-                                          7                       "[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.                                                         ________             Summers, 452 U.S. 692, 700 (1981).  In Illinois v. Gates,             _______                                ________    _____             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             ___             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-                                         ___             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                                       ___             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,                                       ______    ________             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                          ________    _____________             (1963) (citations omitted).  "The substance of all the                                         -8-                                          8             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.                                                         ________             United States, 338 U.S. 160, 175 (1949) (citations omitted).              _____________             See also United States v. Drake, 673 F.2d 15, 17 (1st Cir.             ___ ____ _____________    _____             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                             ________    ________             (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                              _____________    _____             (1st Cir. 1984), cert. denied sub nom., United States v.                              _____________________  _____________             Silvestri, 487 U.S. 1233 (1988).  See also United States v.             _________                         ___ ____ ________________             Paradis, 802 F.2d 553, 557 (1st Cir. 1986).  It is obvious,             _______             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             ________    ________  _____             whether the information available to the police prior to the             stop of the car supports the district court's finding of             probable cause.                                              -9-                                          9                       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                                                               ______             States v. Badessa, 752 F.2d 771, 773 (1st Cir. 1985).  "The             ______    _______             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,                                  _____________    ______             680 (1st Cir. 1992), cert. denied, 113 S. Ct. 1588 (1993).                                   ____________             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                                         -10-                                          10             imagine what does."  Id. at 52.  These factual findings are                                  ___             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                                              _____             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.                                          -11-                                          11             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                     _____________    ___________             (D.R.I. 1985), aff'd, 795 F.2d 75 (1st Cir. 1986).  Such was                            _____             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.                                         -12-                                          12                                         III.                             Motion for a Separate Trial                             ___________________________                                      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.             _____________    ______                              _____             denied, 464 U.S. 1007 (1983).  Abuse of discretion will be             ______                                         -13-                                          13             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.                        _____________    ___             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                                        _____________    _______             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,                                  _____________    ______             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.             _____________    ______                                _____             denied, 498 U.S. 849 (1990).               ______                       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                                         -14-                                          14             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                          ___ _____________    ______             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),                                         -15-                                          15             cert. denied sub nom., Impemba v. United States, 486 U.S.             _____________________  _______    _____________             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                                 _____________    __________             632, 643 (1st Cir.), cert. denied, 449 U.S. 956 (1980).                                   ____________             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.                                          -16-                                          16
