United States v. Fernandez , 136 F.3d 1434 ( 1998 )

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_______________
Nos. 94-4021 & 96-4878
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D. C. Docket No. 92-218-CR-UU-B
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE FERNANDEZ,
Defendant-Appellant.
______________________________
Appeals from the United States District Court
for the Southern District of Florida
______________________________
(March 17, 1998)
Before ANDERSON and BIRCH, Circuit Judges, and WOODS*, Senior
District Judge.
*
Honorable Henry Woods, Senior U.S. District Judge for the
Eastern District of Arkansas, sitting by designation.
BIRCH, Circuit Judge:
In this consolidated appeal, Jose Fernandez, a former Miami-
Dade police officer, challenges his conviction for conspiracy to
import and distribute cocaine, 21 U.S.C. §§ 963 and 846, as well as
the district court’s denial of his motion for a new trial. For the
reasons that follow, we vacate the district court’s order denying
Fernandez’ request for a new trial and remand this case for an
evidentiary hearing. In remanding this case, we specifically direct
the district court to explore the merits of Fernandez’ claims that the
government withheld material, exculpatory evidence in violation of
the principles enunciated in Brady v. Maryland, 373 U.S. 83, 83 S.
Ct. 1194, 10 L. Ed. 2d 215 (1963), and that newly-discovered
evidence requires that he receive a new trial. We deem all
remaining contentions raised in these appeals to be without merit.
I. BACKGROUND
2
Viewing the facts in the light most favorable to the government,
United States v. Keller, 916 F.2d 628, 632 (11th Cir. 1990), we find
the following circumstances underlying Fernandez’ case to be
undisputed: Enrique Zamorano became involved in the drug trade
in 1984 while working as a baggage handler at Miami International
Airport. Initially, Zamorano unloaded small quantities of cocaine
from airplanes originating in Colombia. In 1987, Zamorano and his
Colombian associates sought to expand their business by bringing
larger quantities of cocaine into the cargo facilities in Miami. At first,
Zamorano transported cocaine on cargo flights from both Haiti and
Venezuela into Miami. The cocaine was supplied by a Colombian
distributor, Florentino Fernandez. During these years, Zamorano
also participated in several business enterprises created to launder
the proceeds from cocaine shipments. Zamorano’s United States-
based operations gradually grew to include, among other individuals,
Orlando Fernandez, Hector Aguilar, and Jean Francois.
3
It is beyond dispute that multiple massive shipments of cocaine
successfully entered the United States through Zamorano’s
organization. The particular shipment at issue in this case, however,
implicates the following events: In 1991, a joint task force comprised
of United States Customs (“Customs”) agents and agents of the
Drug Enforcement Administration (“DEA”) were acting in cooperation
with the Venezuelan National Guard (“VNG”) to effect controlled
deliveries of cocaine from Caracas, Venezuela, into Miami. The
DEA also had an office in Caracas that was actively involved in this
joint effort. The DEA and VNG both used an informant,
denominated “Cristobal” or “Cristo” [hereinafter Cristo], who acted as
a broker between Zamorano and Florentino Fernandez. Cristo was
controlled primarily by General Ramon Guillen Davila (“General
Guillen”) of the VNG; the only contact the DEA was able to have with
Cristo was communicated through General Guillen.
In 1989, Zamorano established an airline, Aerolinas Latinas, to
transport cargo from Venezuela into the United States. Although the
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airline originally functioned as a legitimate enterprise, Zamorano
decided in 1990 to use the airline to smuggle cocaine into Miami’s
airport. In October 1990, Zamorano had a large crate built in the
United States and flown to Caracas filled with automobile parts.
After the plane’s arrival in Venezuela, however, the VNG destroyed
this crate. Zamorano had a second crate built; in this instance, he
sent specifications for the crate to Cristo, who had the crate
constructed and delivered to the VNG. At the same time, Cristo
conveyed to the VNG approximately 1,200 kilograms of cocaine that
had been shipped to Zamorano – through Cristo – by Florentino
Fernandez. The VNG and DEA agreed to make a controlled delivery
of this cocaine. In early November 1990, however, the VNG
attempted to transport the cocaine on Aerolinas Latinas without the
DEA’s knowledge or participation. The VNG’s attempt was
unsuccessful because the crate did not fit through the plane’s cargo
door.
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Zamorano next devised another strategy to transport the
cocaine from Venezuela to Miami: he used cargo pallets, normally
not subject to Customs’ inspection, to store the cocaine.
Specifically, Zamorano’s plan involved using stacks of pallets that
had been hollowed out, placing small crates of cocaine into the
hollowed areas, stacking the crates between uncut pallets, and
banding them together. Several of Zamorano’s associates, including
Cristo, helped to orchestrate Zamorano’s plan. On November 8,
1990, the first shipment containing approximately 410 kilograms of
cocaine was successfully shipped into Miami undetected by law
enforcement.
One week later, Zamorano attempted a second shipment by
this method. In this instance, the VNG made the DEA aware of the
intended shipment and the two agencies again planned a controlled
delivery into Miami. The VNG loaded the cocaine into the plane and
indicated on a tally sheet provided to the DEA that it had transported
approximately 602 kilograms of cocaine in this shipment; it is
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undisputed, however, that U. S. law enforcement personnel seized
only 400 kilograms of cocaine after this shipment arrived in the
United States.
Orlando Fernandez, Jean Francois, Hector Aguilar, and
Zamorano all testified as part of the government’s case at
Fernandez’ trial. Each co-conspirator’s testimony supported the
government’s allegation that Fernandez had “tipped off” Zamorano
by informing him that the November 16 shipment was under
surveillance. Orlando Fernandez, Fernandez’ cousin, testified that
Fernandez had expressed interest in becoming chief of security at
Zamorano’s airline and had provided Zamorano on many occasions
with information regarding whether drug shipments were “safe” to
retrieve at the airport. Jean Francois, Hector Aguilar, and Zamorano
all testified that, immediately prior to the November 16th shipment’s
arrival in Miami, Fernandez attempted to contact Zamorano to inform
him that the delivery would be under surveillance by law
enforcement. Each of the co-conspirators further testified that
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Fernandez (1) met with Zamorano on November 17th and pointed
out to him U. S. Customs’ surveillance vehicles at the Miami airport;
(2) met with Zamorano, Orlando Fernandez, and others later that
evening and helped the conspirators to devise a way to “unload” the
cocaine by delivering the shipment to Customs agents; (3) had an
informant associated with Customs in Puerto Rico who regularly
provided him with information regarding planned surveillance of
cargo planes into Miami; and (4) periodically received payments
from Zamorano for his assistance. In addition, the government
presented at trial several taped conversations between Fernandez
and Orlando Fernandez. Although the contents of these
conversations implicated Fernandez with respect to his involvement
in Zamorano’s organization, Fernandez made no conclusive
admission of his own complicity.
Fernandez’ defense at trial, reduced to its simplest terms, was
that he was “in the wrong place at the wrong time” and that there
were other more likely “tipsters” who may have informed Zamorano
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that federal law enforcement officers were aware of the November
16th drug shipment. Several DEA agents testified regarding the
machinations of the conspiracy in its entirety; in each case,
Fernandez attempted to elicit testimony from the agents that either
General Guillen, a suspected corrupt official, or Cristo, a known
informant, could have “tipped” the shipment. DEA agents also
testified that, when Fernandez was arrested, he stated that he was
"nowhere near the top" of Zamorano's organization. Fernandez
attempted to show, through cross-examination, that this statement
was intended to be sarcastic. Fernandez also presented to the jury
evidence contained in a DEA report indicating that Orlando
Fernandez had told the DEA that Cristo had been the tipster.
Fernandez testified on his own behalf and admitted that he had met
several of the individuals associated with the conspiracy – including
Zamorano – through his cousin, Orlando Fernandez. Fernandez
conceded that he had tried to contact Zamorano on the evening of
November 16th, but only to relay to Orlando Fernandez that he
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needed a place to stay that night due to marital difficulties; the same
explanation essentially accounted for his presence at a meeting with
Zamorano and Orlando Fernandez later that evening. Ruben
Gonzalez, the Customs agent alleged by the government to be
Fernandez’ informant, also took the stand and testified that he and
Fernandez, like many state and federal law enforcement officers,
frequently shared information but did not provide “tips” for illicit
purposes. Fernandez was acquitted of the substantive charges of
possession and importation of cocaine, but convicted of conspiracy
to possess with intent to distribute and to import cocaine.
Fernandez was sentenced to 30 years’ imprisonment.
During the course of the trial, several news reports appeared
indicating that General Guillen had been arrested in Venezuela for
his suspected involvement in the drug trade. The reports further
alluded to the relocation of two DEA agents suspected of being
romantically involved with General Guillen and his lieutenants, as
well as a CIA agent, Mark McFarlin. The court held an in camera
10
hearing outside the presence of both the defendant and his attorney
to discuss the possible implications of these reports. The transcript
of that hearing remains sealed from the defendant. As a result of
the hearing, the court ordered the government to produce for the
defendant: (1) any reference in a report that would suggest that
someone other than the defendant was in a position to tip the load
of cocaine; (2) information which describes the nature and scope of
General Guillen’s narcotics trafficking activities; and (3) information
that suggests that a DEA agent associated with this case may have
“crossed the line.” Following a second ex parte hearing, the court
revealed to the defendant, pursuant to Brady, that evidence existed
showing that Zamorano had made several payments to Cristo
following both the November 8 and November 16th shipments. It is
unclear whether any further Brady material was produced. The
thrust of this appeal is whether the government fulfilled its obligation
to convey to the defendant all the material information of which it
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was aware that would "point the finger" at other potential tipsters
regarding the shipment at issue.
Subsequent to Fernandez’ trial, more news reports appeared
describing involvement of the DEA, CIA, and VNG in drug shipments
from Caracas to the United States during the relevant time period.
Many of the allegations contained in these reports concerning
corruption, inefficiency, and romantic liaisons between officials in the
DEA and VNG already were known -- or were made known -- to
Fernandez during his trial. The only news reports that bear directly
on this appeal are those that describe the possible participation of
the CIA in the drug trafficking activities at issue.
Numerous newspaper accounts charged that the CIA had
funded an anti-drug unit that had smuggled substantial quantities of
cocaine into the United States in uncontrolled deliveries approved by
the agency; that General Guillen had worked closely with the CIA
and, in particular, with CIA agent Mark McFarlin, who had possibly
“tipped off” Guillen regarding investigation into a shipment of
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cocaine; that the DEA had refused to participate in these
uncontrolled deliveries; and that the CIA expressly may have
authorized the November 8th shipment of cocaine that successfully
entered the United States. R1-263, Exh. 3.
Fernandez now argues that the information contained in these
reports either was known or should have been known to the
government at the time of trial, was not divulged, and was
exculpatory; in the alternative, he suggests that the news reports
present newly discovered evidence that warrants an evidentiary
hearing and a retrial. The government neither confirms nor denies
the accuracy of the reports but avers that, even assuming the
information contained in the newspaper accounts is true, the
outcome of Fernandez’ trial would not have been altered had he
possessed this information.
The district court denied Fernandez’ motion for a new trial or
evidentiary hearing and stated that the substance of the reports was
known to Fernandez at the time of trial; the conclusions drawn by
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Fernandez from the reports a matter of rank speculation; and the
information contained therein merely cumulative or impeaching.
II. DISCUSSION
We review the district court’s denial of a motion for a new trial
based on a Brady violation for abuse of discretion. United States v.
Kersey, 130 F.3d 1463, 1465 (11th Cir. 1997). A Brady claim is
available if either exculpatory or impeachment evidence is
suppressed, regardless of the good faith or bad faith of the
prosecution. United States v. Yizar, 956 F.2d 230, 233 (11th Cir.
1992). A defendant who seeks a new trial based on an alleged
Brady violation must show that, had the evidence been revealed to
the defense, there is a reasonable probability that the outcome of
the proceeding would have been different. See United Stated v.
Newton, 44 F.3d 913, 918 (11th Cir. 1995).
Our review of the district court’s denial of a motion for a new
trial based on newly discovered evidence is subject to the abuse of
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discretion standard. United States v. Obregon, 893 F.2d 1307, 1312
(11th Cir. 1990). Similarly, we review the district court’s denial of an
evidentiary hearing for abuse of discretion. United States v.
Massey, 89 F.3d 1433, 1443 (11th Cir. 1996), cert. denied, ___ U.S.
___, 117 S. Ct. 983, 136 L. Ed. 2d 865 (1997). To obtain a new trial
based on newly discovered evidence, a “movant must demonstrate
that the evidence was discovered after trial, that due diligence was
shown, and that the evidence was neither cumulative nor
impeaching but actually material and likely to produce a new result.”
Branca v. Security Ben. Life Ins. Co., 789 F.2d 1511, 1512 (11th Cir.
1986) (per curiam).
Fernandez contends that the information concerning the
alleged involvement of the CIA in drug shipments from Caracas into
Miami generally and, more particularly, the shipments described in
this case, coupled with the newly-established link between the CIA
and General Guillen would have afforded him a far stronger defense.
Specifically, he suggests that this information would have allowed
15
him to show that General Guillen and Cristo were not simply “double
dealers” but, rather, were working closely with the CIA and had a
motive to “tip” the shipment. Fernandez further argues that he
cannot ascertain whether this evidence is Brady or newly discovered
evidence because the in camera hearings held during the trial,
during which Brady material was discussed, were held outside the
presence of defense counsel and remain sealed.
The government responds that Fernandez has concocted a
far-fetched, imaginative theory to justify a retrial. It is worth noting,
however, that the government does not deny the essential veracity
of these news reports which are, by themselves, extraordinary and
troubling. Although the government presented a formidable case
against Fernandez at trial, it was based almost exclusively on the
testimony of co-conspirators. While the uncorroborated testimony
of co-conspirators can be sufficient to support a conviction, see
United States v. Broadwell, 870 F.2d 594, 601 (11th Cir. 1989), our
inquiry at this stage is whether evidence of the CIA’s possible link to
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the very drug shipments at issue in this case either reasonably might
have affected the outcome of the proceeding or, in the alternative,
would likely produce a different result if the case were retried. In our
view, the district court too easily brushed aside the possible impact
that these rather sensational allegations might have had on
Fernandez’ case. Fernandez tried to establish that, due to the
overall corruption in the VNG and possibly the DEA, other possible
“tipsters” existed, but his case was vulnerable -- if not thoroughly
implausible -- without the various bits and pieces of information
needed to create a coherent alternate theory of the case. Much of
the information that Fernandez did obtain during the trial came from
news reports that were never officially corroborated by the
government; conversations regarding the veracity and potential
implications of these news reports, moreover, consistently were held
outside the presence of both the defendant and his attorney. At this
stage, it is impossible to discern whether the addition of evidence of
a possible CIA-link to this case would have completed the puzzle
17
and thereby created for the jury reasonable doubt or whether, as the
district court determined, the evidence was merely cumulative. In
light of the fact that the government’s case against Fernandez was
based almost exclusively on the testimony of co-defendants,
however, and because the allegations potentially implicating the
CIA are responsive directly to the defense that Fernandez attempted
to present, we conclude that these allegations are, at the very least,
significant enough to permit Fernandez to present his case at a
hearing.
We express no opinion as to whether Fernandez ultimately will
succeed in his effort to demonstrate that the evidence contained in
media reports concerning the possible involvement of the CIA in this
case impugned his verdict. Fernandez has proffered, however,
sufficient evidence that these allegations and reports could
materially have affected his trial such that an evidentiary hearing is
appropriate. We further note that a hearing is necessary to parse
out the Brady elements of Fernandez’ claim from the request for a
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new trial based on newly discovered evidence. Accordingly, we
VACATE the district court’s order denying Fernandez’ motion for a
new trial and REMAND this case for an evidentiary hearing
consistent with this opinion.
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