United States v. Quintero , 38 F.3d 1317 ( 1994 )

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
10-25-1994
USA v. Quintero
Precedential or Non-Precedential:
Docket 93-1377
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"USA v. Quintero" (1994). 1994 Decisions. Paper 166.
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 93-1377; 93-1386; 93-1389
93-1415; 93-1416; 93-1572
UNITED STATES OF AMERICA
v.
MELBA QUINTERO
Appellant in 93-1377.
MARIA RODRIGUEZ
Appellant in 93-1386.
SANTIAGO GONZALEZ
Appellant in 93-1389.
JOSE GONZALEZ-RIVERA
a/k/a "Tosti", Aberto Otero
Jose Gonzalez-Rivera
Appellant in 93-1415.
JOSE CRUZ
Appellant in 93-1416.
JOAQUIN MORGADO
Appellant in 93-1572.
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Criminal Action Nos. 92-00055-01; 02; 05; 08; 10; 12)
Argued: March 24, 1994
Before: HUTCHINSON, ROTH and ROSENN, Circuit Judges
(Opinion Filed October 25, l994 )
Michael R. Stiles
United States Attorney
Walter S. Batty, Jr. (Argued)
Assistant United States Attorney
Thomas H. Suddath, Jr. (Argued)
Assistant United States Attorney
Carlos A. Martir, Jr.
Assistant United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Attorneys for Appellee
Mark S. Greenberg, Esquire
Stephen R. LaCheen & Associates
3100 Lewis Tower Building
15th & Locusts Sts.
Philadelphia, PA 19102
Attorney for Appellant Quintero
Mark D. Mungello, Esquire (Argued)
103 LaCosta Drive
Blackwood, NJ 08012
Attorney for Appellant Rodriguez
James P. McFadden, (Argued)
Assistant Federal Defender
Elaine DeMasse
Senior Appellate Counsel
Maureen Kearney Rowley
Chief Federal Defender
Defender Association of Philadelphia
Federal Court Division
437 Chestnut Street
Lafayette Building, Suite 800
Philadelphia, PA 19106-2414
Attorneys for Appellant Gonzalez
Christopher D. Warren, Esquire (Argued)
DeStefano & Warren, P.C.
437 Chestnut Street
Lafayette Building, Suite 1006
Philadelphia, PA 19106
Attorney for Appellant Gonzales-Rivera
William T. Cannon, Esquire (Argued)
Law Offices of William T. Cannon
12 South 12th Street
2540 PSFS Building
Philadelphia, PA 19107
Attorney for Appellant Cruz
Lawrence S. Krasner, Esquire
Krasner & Restrepo
924 Cherry Street, 2nd Floor
Philadelphia, PA 19107
Attorney for Appellant Morgado
OPINION OF THE COURT
ROTH, Circuit Judge:
Defendants Melba Quintero, Jose Gonzalez-Rivera, Maria
Rodriguez, Santiago Gonzalez, Joaquin Mordago, and Jose Cruz
appeal from judgments entered in the United States District Court
for the Eastern District of Pennsylvania after a jury trial in
which they were all convicted of conspiracy to distribute in
excess of five kilograms of cocaine, in violation of 21 U.S.C. §
846 (Count One). In addition to the conspiracy count, each of
the six defendants was convicted of other counts in the twenty-
eight count indictment.
The trial lasted twenty days during which the
government presented evidence consisting of electronic
surveillance, audio recordings, video recordings, documents
seized from defendants at the time of their arrest, and testimony
of numerous law enforcement witnesses and of an expert in
interpreting drug jargon. The government also presented the
testimony of Cristobal Paz, one of the defendants' co-
conspirators, who had pled guilty and who testified as a
cooperating witness for the prosecution.
In addition to the conspiracy count, the jury found
Gonzalez-Rivera guilty of one count of engaging in a continuing
criminal enterprise ("CCE") in violation of 21 U.S.C. § 848
(Count Two), two counts of possession with intent to distribute
cocaine in violation of 21 § U.S.C. 841(a)(1) (Counts Five and
Six), and one count of use of a communication facility to
facilitate the conspiracy in violation of 21 U.S.C. § 843(b)
(Count Eight). Rodriguez was convicted of one count of use of a
communication facility to facilitate the conspiracy (Count
Thirteen). Gonzalez was convicted of two counts of distribution
of cocaine in violation of 21 U.S.C. § 841(a)(1) (Counts Fourteen
and Sixteen) and one count of use of a communication facility to
facilitate the conspiracy (Count Twenty-One). The jury also
found that, pursuant to 21 § U.S.C. 853, Gonzalez must forfeit
certain property to the United States (Count Twenty-Five).
Quintero was convicted of three counts of use of a communication
facility to facilitate the conspiracy (Counts Seventeen,
Nineteen, and Twenty), one count of distribution of cocaine
(Count Twenty-Two), and one count of possession with intent to
distribute cocaine (Count Twenty-Three). Mordago was convicted
of one count of use of a communication facility to facilitate the
conspiracy (Count Eighteen). Cruz was convicted of one count of
possession with intent to distribute cocaine (Count Five).1
On appeal, all of the defendants, except Cruz,
challenge the district court's refusal to suppress certain
telephone surveillance tapes which comprised part of the
government's evidence. Defendants assert that the tapes were not
sealed immediately after the final authorization order expired,
1
. As stated, each defendant was convicted on Count One of
conspiracy to distribute in excess of five kilograms of cocaine.
Based on these convictions, the defendants received the following
sentences. Gonzalez-Rivera was sentenced to life imprisonment on
each of Counts One, Two, Five, and Six; 48 months imprisonment on
Count Eight to run concurrently with the life terms; and a $250
special assessment. Rodriguez was sentenced to 144 months
imprisonment on Count One; 48 months imprisonment on Count
Thirteen to run concurrently with the earlier count; five years
supervised release; and a $100 special assessment. Gonzalez was
sentenced to 240 months imprisonment on Counts One, Fourteen, and
Sixteen; 48 months imprisonment on Count Twenty-One to run
concurrently with the earlier counts; five years supervised
release; $21,000 in restitution; $5,000 fine; and a $200 special
assessment. Quintero was sentenced to 235 months imprisonment on
Counts One, Twenty-Two, and Twenty-Three; 48 months imprisonment
on Counts Seventeen, Nineteen, and Twenty to run concurrently
with the earlier counts; five years supervised release; and a
$300 special assessment. According to Quintero's Presentence
Report, Quintero was found not guilty on Count Twenty-Eight and
discharged as to that forfeiture count. Our reading of the trial
transcript indicates that the jury found that Quintero must
forfeit $2,000 resulting from money received as alleged in overt
act 36 of Count One, but not guilty as to $3,000 resulting from
money received as alleged in overt act 37 of Count One. Mordago
was sentenced to 264 months imprisonment on Count One; 48 months
imprisonment on Count Eighteen to run concurrently with the
earlier count; five years supervised release; and a $100 special
assessment. Cruz was sentenced to 186 months imprisonment on
Counts One and Five to run concurrently; five years supervised
release; and a $100 special assessment.
as required by statute, and that the government failed to offer a
satisfactory explanation for the delay in sealing. For the
reasons which we will more fully develop below, we conclude that
certain of the surveillance tapes should have been suppressed.
The government concedes that those convictions arising directly
from the tapes cannot stand if the tapes are suppressed. We
agree and will reverse those convictions. As for the remaining
convictions, we will examine them under a harmless error standard
to determine whether they must also be reversed.2
I.
On February 7, 1992, a grand jury in the Eastern
District of Pennsylvania returned a twenty-eight count indictment
charging twelve individuals, including the six defendants here,
2
. In addition to the counts affected by the telephone
surveillance tapes, and the harmless error analysis we will apply
to those counts, defendants also challenge numerous individual
aspects of their convictions and sentences. Gonzalez-Rivera
asserts that his conviction for conspiracy to distribute cocaine
should be dismissed as a lesser included offense and challenges
the sufficiency of the evidence to support (1) his conviction of
engaging in a CCE and (2) the district court's conclusion that he
was involved in the distribution of in excess of 150 kilograms of
cocaine. Rodriguez challenges the sufficiency of the evidence to
support her conviction of conspiracy to distribute cocaine and
the district court's refusal to allow defendant's counsel to
cross-examine Quintero. Gonzalez asserts that the district court
erred in failing to grant a mistrial sua sponte and to sever his
trial from Mordago's trial. Gonzalez also challenges his
conviction for conspiracy to distribute cocaine as well as the
district court's imposition of restitution and a fine. Cruz
challenges the district court's refusal to suppress certain
physical evidence obtained during a search of a car driven by the
defendant. We have carefully reviewed these grounds for appeal
and find them to be without merit.
with a conspiracy to distribute cocaine in the Philadelphia
region. The indictment resulted from an extensive undercover
investigation conducted by the Federal Bureau of Investigation
("FBI") and other law enforcement personnel.
After receiving information from a cooperating witness
that drug dealers in the Philadelphia area needed vehicles with
concealed compartments, the FBI established an undercover
operation known as MRK Services, Inc. ("MRK"). MRK rented "load
cars"--cars which had secret compartments that could conceal
large quantities of drugs or currency. MRK also leased out
mobile cellular telephones. Hidden video and audio devices had
been installed in the MRK offices to record the transactions that
took place there. In addition, monitoring devices had been
placed in the load cars to facilitate surveillance. Two
undercover officers, Carlos Tapia ("agent Tapia") and Arsenio
Gonzalez ("agent Gonzalez") posed as employees of MRK and in that
capacity had dealings with several of the defendants.
As part of the investigation, the government conducted
ninety days of electronic surveillance of Paz's cellular
telephone, from August 1, 1991, through October 29, 1991. There
were three one-month authorizations and three judicial sealings.
The first authorization expired on August 30, 1991 ("August
tapes"). The August tapes were sealed eleven days later, on
September 10, 1991, by District Court Judge James J. Giles. The
first extension of the surveillance was authorized for thirty
days and expired on September 29, 1991 ("September tapes"). The
September tapes were sealed five days later, on October 5, 1991,
by District Court Judge James McGirr Kelly, who was serving as
Emergency Judge. The second, and final, extension of the
surveillance was authorized for thirty days and expired on
October 29, 1991 ("October tapes"). The October tapes were
sealed twenty days later, on November 18, 1991, by Judge Giles.
During this period, Paz used his cellular phone to
discuss his cocaine business with many of the individuals named
in the indictment. At trial, the government offered into
evidence sixty tape recordings and four video recordings
involving the defendants. A large majority of the taped
conversations were of telephone calls on Paz's cellular phone.
The remaining calls were recorded as incoming calls to MRK. Each
of the defendants, except Cruz, was recorded talking with Paz on
a number of occasions. Before turning to the question of whether
the government failed to seal the tapes in a manner consistent
with the law, an overview of the evidence presented at trial is
important to understanding the scope of the enterprise.
In November 1990, an informant serving a term of
imprisonment with Cristobal Paz informed the FBI that Paz, who
intended to re-enter the drug trade on release from prison,
needed a "ghost job" in order to satisfy the terms of his parole.
The FBI instructed the informant to give Paz the MRK telephone
number. After his release, Paz called MRK and spoke to agent
Tapia about a ghost job. Paz was informed that he could work as
a ghost employee with MRK if he agreed to supply MRK with funds
up front, which MRK would then use to pay Paz. Paz did not
comply with this condition and was not given a ghost job.
On his release from prison, Paz sought to reestablish
himself in the Philadelphia area as a major cocaine supplier. He
claims to have received large quantities of cocaine from
Gonzalez-Rivera in New York and from Oscar Fuentes in Florida.
Paz began to sell cocaine to agent Gonzalez. On May 7, 1991,
three individuals, working for Paz, delivered one kilogram of
cocaine to MRK in exchange for $21,000. After receiving the
cocaine, agent Gonzalez called Paz to confirm that it had
arrived. Paz testified that this cocaine was supplied by Fuentes
and delivered to Philadelphia by Santiago Gonzalez. According to
Paz, after he took $1,000 on the deal, he paid Gonzalez the
remaining $20,000 for the cocaine. On cross-examination, Paz
acknowledged that he had earlier told the FBI that this cocaine
was supplied by Gonzalez-Rivera.
Paz testified that, although he was suspicious that
agent Gonzalez was working undercover, this first sale helped to
convince him that MRK was not an undercover police operation.
Three weeks after the first cocaine sale, Paz leased two cellular
phones and one digital telephone pager from MRK. One of the
telephones was for his own use, while the other was for a
codefendant. It was Paz's cellular phone that was later
wiretapped.
In June 1991, Paz and Jose Rosario travelled to New
York to receive a shipment of cocaine from Gonzalez-Rivera. Paz
returned to Philadelphia before receiving the cocaine but
testified that Gonzalez-Rivera called to tell him that the
cocaine had arrived. Cruz and Rosario left New York with the
cocaine to deliver it to Paz in Philadelphia. They were stopped
by the police for speeding on the New Jersey turnpike. Because
of their suspicious behavior, they were detained and their car
was towed to the police barracks. A police dog reacted
positively to the presence of cocaine in the trunk of the car.
The New Jersey police obtained a warrant to search a suitcase in
the trunk and discovered fifteen kilograms of cocaine in it.
Paz testified that after the seizure of this cocaine
Gonzalez-Rivera contacted his boss in the drug network, Guillermo
(a/k/a "Memo"), in Medellin, Colombia. According to Paz,
Gonzalez-Rivera received his cocaine from Guillermo and Guillermo
worked for Pablo Escobar.
On June 27, 1991, the day after the fifteen kilogram
shipment of cocaine was seized, Paz rented a load car from MRK.
Agent Gonzalez testified that, when Paz returned the car on July
1, he stated that he had made two trips to New York, carrying
forty-six kilograms on each trip and that he had transported a
total of 145 kilograms of cocaine while he had the car. In
addition, Paz said that he had used the car to transport a large
amount of cash to Baltimore. After Paz left MRK, the agents
inspected the car and found white powder in the hidden
compartments. The powder later tested positive for cocaine.
Two days later, on July 3, Paz rented a load car and
drove it to New York. When Paz returned the car a little more
than a week later, the agents discovered two packages of coffee
in the secret compartment. An FBI agent testified that coffee is
often used by drug traffickers to mask the smell of drugs from
trained drug-sniffing dogs.
On July 15, Paz rented the same load car from MRK. He
drove to Gonzalez-Rivera's residence in the Bronx, New York. Paz
testified that he met Gonzalez-Rivera to take delivery of twenty-
six kilograms of cocaine. New York City detectives set up
surveillance at Gonzalez-Rivera's residence and at the residences
of co-defendants Diego Jesus Ortega ("Ortega") and Ortega's
nephew, Diego Mauricio Lopez-Ortega ("Lopez-Ortega"). Paz met
Gonzalez-Rivera in Manhattan and drove to Gonzalez-Rivera's
residence in the Bronx. On arriving at his residence, Gonzalez-
Rivera removed a gym bag from the car. One hour later, an
unidentified individual exited Gonzalez-Rivera's residence with
two gym bags and placed them in the car that Paz had rented from
MRK. Later that day, Ortega left Gonzalez-Rivera's residence
carrying a gym bag which he took to Lopez-Ortega's residence in
Queens. Police later obtained permission from Lopez-Ortega to
search his apartment; they found six kilograms of cocaine in a
gym bag. Paz testified that the cocaine he received from
Gonzalez-Rivera was brought to Philadelphia for distribution.
Paz further testified that the cocaine seized from Lopez-Ortega
had been rejected by Paz when Gonzalez-Rivera offered it to him.
Upon Paz's return of the load car to MRK, agents discovered
coffee grounds scattered throughout the secret compartment area.
On September 13, Paz and Santiago Gonzalez met with
agent Gonzalez at MRK to sell him one kilogram of cocaine. Agent
Gonzalez indicated that he would like to see the cocaine.
Santiago Gonzalez told Paz that "it's under your seat" in the car
that they had driven to MRK. Paz retrieved the cocaine from the
car and was paid $21,000 by agent Gonzalez. Paz took $1,000 to
pay for his use of the cellular phone and handed the remaining
$20,000 to Santiago Gonzalez. Agent Gonzalez testified that
Santiago Gonzalez held onto the money throughout the remainder of
the meeting. Paz testified that this kilogram was part of a
twenty kilogram delivery that Santiago Gonzalez had brought from
Florida.
On October 11, Paz gave five kilograms of cocaine on
consignment to agent Gonzalez at MRK ("the October 11 cocaine").
Agent Gonzalez met Paz at a Sunoco gas station near MRK prior to
the sale. According to agent Gonzalez, an unidentified female
was in the front seat of Paz's car and Santiago Gonzalez was in
the back seat. After meeting at the Sunoco Station, Paz and
agent Gonzalez proceeded to MRK in separate cars. Paz entered
MRK and delivered the five kilograms of cocaine. After the
transaction, agent Gonzalez and Paz walked back outside. Agent
Gonzalez noted that the unidentified woman and Santiago Gonzalez
had remained in Paz's car. Paz testified that the October 11
cocaine was part of a delivery that Santiago Gonzalez made from
Florida.
In a telephone call taped by MRK on October 16, Paz and
Santiago Gonzalez asked to be paid for the October 11 cocaine.
Agent Tapia testified that the FBI wanted to delay payment
because they were planning to arrest Paz in the near future. The
FBI arranged a meeting with Paz for the following day. Just
moments before Paz was to meet with agent Tapia, the FBI staged a
ruse in which the purported pay-off was seized from agent
Gonzalez by officers in a marked police car. The seizure was
staged so that Paz witnessed the event in an effort to convince
him that agent Tapia had planned to make the pay-off.
On October 31, Paz brought three additional kilograms
of cocaine to MRK. Agent Gonzalez was instructed by the FBI to
accept two of the three kilograms of cocaine from Paz but to
refuse the third. Shortly after leaving MRK, Paz was arrested
with the remaining kilogram of cocaine in his possession.
Paz testified that he received two and one-half
kilograms of this cocaine from Quintero and codefendant Elsa Cruz
during a trip to New York and that the remainder was left over
from cocaine supplied to him by Santiago Gonzalez. He said that
the cocaine he received from Quintero and Cruz was "wet" and he
needed to dry it before selling it to MRK. Paz testified that
Mordago helped him by drying the cocaine with acetone and that,
during the October 31 transaction, he called Mordago to complain
about the quality of the cocaine.
During the week following Paz's arrest, Santiago
Gonzalez and agent Tapia talked on the MRK telephone about paying
for the October 11 cocaine. On November 8, 1991, Santiago
Gonzalez was arrested in the parking lot of a Comfort Inn, where
he had arranged to meet agent Tapia to receive the $97,500 which
was owed for the October 11 cocaine. Less than an hour later,
Mordago was arrested in a room at the Comfort Inn, registered in
Santiago Gonzalez's name. On January 16, 1992, agents arrested
Gonzalez-Rivera and Rodriguez outside the residence in the Bronx
where they lived together. At the time of their arrest, agents
seized papers which contained the telephone and beeper numbers
for several of the defendants named in the indictment.
II.
The central question in this appeal is whether the
district court erred in denying defendants' motions to suppress
the wiretaps. The government concedes that the October tapes
"were not sealed as soon as administratively practical." In view
of this concession, we must decide whether the October tapes
should have been suppressed because the government failed to
supply a satisfactory explanation for the sealing delay. On this
question, our review is plenary. United States v. Carson, 969
F.2d 1480, 1487 (3d Cir. 1992) ("We exercise plenary review over
the legal issues relating to the sealing . . . of the tapes.").
III.
A.
Each of the five defendants, contesting the admission
of the wiretap tapes, presented individual briefs to the court.
Quintero asserts that all of the tapes must be suppressed.
Gonzalez-Rivera and Mordago challenge the August and October
tapes, while Rodriguez and Santiago Gonzalez limit their
challenge to the October tapes. For the reasons stated below, we
conclude that only the October tapes must be suppressed.
In obtaining authorization for tapping into Paz's
cellular phone, the government followed the procedures for
interception contained in Title III of the Omnibus Crime Control
and Safe Streets Act of 1968, as amended, 18 U.S.C. § 2510 et
seq. Defendants do not challenge the initial authorization or
the two extensions. The only challenge to the tapes is based on
the assertion that the government failed to comply with §
2518(8)(a) which provides, in part, that:
The recording of the contents of any wire,
oral, or electronic communication under this
subsection shall be done in such a way as
will protect the recording from editing or
other alterations. Immediately upon the
expiration of the period of the order, or
extensions thereof, such recordings shall be
made available to the judge issuing such
order and sealed under his directions. . . .
The presence of the seal provided for by this
subsection, or a satisfactory explanation for
the absence thereof, shall be a prerequisite
for the use or disclosure of the contents of
any wire, oral, or electronic communication
or evidence derived therefrom under
subsection (3) of section 2517.3
(emphasis added).
In United States v. Ojeda Rios, 495 U.S. 257, 260
(1990), the Supreme Court noted that § 2518(8)(a) contains "an
explicit exclusionary remedy for noncompliance with the sealing
requirement." The Supreme Court determined that, pursuant to §
2518(8)(a), a seal had to be "obtained immediately upon
expiration of the underlying surveillance order." Id. at 263
(emphasis added). In the absence of a timely sealing, the Court
interpreted the statute to require that the government supply a
satisfactory explanation for its failure to comply with the
statute. Id. "[T]he 'satisfactory explanation' language in §
2518(8)(a) must be understood to require that the Government
explain not only why a delay occurred but also why it is
3
. 18 U.S.C. § 2517(3) provides:
Any person who has received, by any means
authorized by this chapter, any information
concerning a wire, oral, or electronic
communication, or evidence derived therefrom
intercepted in accordance with the provisions
of this chapter may disclose the contents of
that communication or such derivative
evidence while giving testimony under oath or
affirmation in any proceeding held under the
authority of the United States or of any
State or political subdivision thereof.
excusable." Id. at 265. The Court held that the explanation
offered by the government for the delay must be the explanation
relied upon by the government at the suppression hearing and not
an excuse presented by the government for the first time on
appellate review. Id. at 267.
In Ojeda Rios, a series of court orders authorized
electronic surveillance of the defendant in three different
locations for three different time periods. The government
waited until the end of the entire investigation to seal the
tapes. The underlying question was whether the government had
been obliged to seal the tapes from each location when that stage
of the surveillance had terminated or whether tapings at
different locations for different periods of time could be
considered to be extensions of the original order. The
government asserted that its reason for the delay in sealing the
tapes was the prosecutor's misunderstanding of the statutory term
"extension." Specifically, the government attorney believed that
he was not required to seal any tapes until all the taping had
been completed.
The Supreme Court held that the excuse advanced by the
government was "objectively reasonable" at the time the
government's decision was made, given earlier Second Circuit
decisions interpreting the meaning of "extension" and its
relationship to the sealing requirement. The Court held that, if
the government could show that the prosecutor's misunderstanding
of the law was the excuse given by the government at the
suppression hearing, such an "objectively reasonable"
understanding of the law would be a "satisfactory explanation"
for the government's delay in sealing the tapes. 495 U.S. at
266.
Since Ojeda Rios, we have had two cases which required
us to evaluate whether the government's delay in sealing tapes
could be excused based on a "satisfactory explanation" provided
by the government. See United States v. Vastola, 989 F.2d 1318
(3d Cir. 1993) (Vastola III);4 United States v. Carson, 969 F.2d
1480 (3d Cir. 1992). In Carson, we held that:
there are two kinds of justifiable government
delays under the statutory scheme. First,
there are the relatively short delays
necessitated by the process required to
comply with the provisions of the Act. . . .
Second, there are sometimes longer delays
attributable to non-administrative,
objectively reasonable causes like
understandable mistakes of law and
interference from unexpected, extrinsic
events beyond the government's control.
969 F.2d at 1488.5 We also stated in Carson that a "satisfactory
explanation is usually based on a mistaken view of the law on
4
. In the present dispute, the government does not rely on a
mistaken view of the law to explain why it delayed sealing the
tapes. Given that the focus of our decision in Vastola III was
on whether the prosecutor's mistaken view of the law was
objectively reasonable, we need not discuss that case in detail.
5
. It is important to emphasize that this first type of delay
concerns the short delays related directly to readying the tapes
for sealing. In Carson, we noted that "a local United States
Attorney can obtain a sealing order simply by presenting the
appropriate papers and tapes to the supervising judge. Other
what triggers sealing, but on occasion it can be supplied by an
extraneous unforeseen emergent situation." 969 F.2d at 1487
(citing Ojeda Rios, 495 U.S. at 266 and United States v. Massino,
784 F.2d 153, 157 (2d Cir. 1986)).
In Carson, we held that the government offered a
satisfactory explanation for the delay in sealing certain tapes
based on the prosecutor's mistaken view of the statute's sealing
requirements. 969 F.2d at 1493. However, with regard to a
second set of tapes, we rejected the explanation for the delay as
unsatisfactory. The thirty-four day delay in sealing these tapes
was caused by the government's sending them from New Jersey to
Washington, D.C., to enhance their audibility. Id. at 1497.
Finding that this delay was caused by neither a mistaken view of
the statute's requirements nor by an extraneous unforeseen
emergent situation, we held that the second set of tapes must be
suppressed.
B.
With this background, we now turn to the present
dispute. As a preliminary matter, we address the assertion put
forth by Quintero and Gonzalez-Rivera that the August tapes
should be suppressed because they were not sealed until the
eleventh day after the initial wiretap authorization expired on
August 30, 1991. In Carson, we held that the government's
(..continued)
than gathering the tapes, putting them in boxes and taking the
tapes to the supervising judge, the record discloses no other
necessary steps to sealing." 969 F.2d at 1489.
obligation to seal tapes under § 2518(8)(a) does not arise until
the termination of the final extension of the order. 969 F.2d at
1487 (language in § 2518(8)(a) which states that tapes must be
sealed "immediately upon the expiration of the period of the
order, or extensions thereof" represents "a Congressional
determination that tapes secured under one order need not be
sealed while surveillance is being conducted under a related
order that may be considered an 'extension.'"). We have
determined that a court's authorization to extend a wiretap
beyond the initial authorization is generally limited to taps
involving the same location, United States v. Vastola, 915 F.2d
865, 874 (3d Cir. 1990) (Vastola II), cert. denied, 498 U.S. 1120
(1991).6
The extensions authorized here were clearly a
continuation of the initial authorization to tap Paz's cellular
phone. None of the defendants have asserted that the first or
second extension constituted anything other than a continuation
of the initial authorization. Consequently, the August tapes did
not have to be sealed until the termination of the entire wiretap
operation on October 29, 1991. Given the fact that the August
tapes were sealed on September 10, 1991, long before the wiretap
terminated on October 29, 1991, the district court properly
admitted the August tapes. This same result applies to the
6
. Under the facts of the present case, we now perforce expand
that interpretation of "extension" to include taps involving a
designated cellular telephone.
September tapes, which were sealed on October 4, 1991, again long
before October 29, 1991. Our focus, therefore, is on the October
tapes.
The government concedes that it failed to seal the
October tapes immediately: "Regarding the October tapes, the
government concedes that these tapes were not sealed as soon as
administratively practical under Carson and Vastola III. This
Court must then determine if the October tapes are nonetheless
admissible because the delay was 'objectively reasonable.'"
In order to assess whether the government has supplied
a satisfactory explanation for the delay in sealing the October
tapes, we are required under Ojeda Rios to examine the reasons
supplied by the government to the district court. In addition,
we held in Vastola III that the government "must prove the actual
reason for the sealing delay rather than an excuse for some
ulterior purpose or administrative bungle." 989 F.2d at 1323.
See also Ojeda Rios, 495 U.S. at 267 ("a 'satisfactory
explanation' within the meaning of [the statute] cannot merely be
a reasonable excuse for the delay; it must also reflect the
actual reason for the delay.") (O'Connor, J., concurring, joined
by Blackmun, J.).
On the first day of the trial, defendants moved to
suppress the tapes based on the government's failure to comply
with the statute's sealing requirement. At the hearing on the
motion, FBI agent Michael McGowan, who headed the investigation,
testified that he believed "part of the delay" in sealing was
because at the end of the October authorization period both of
the Assistant United States Attorneys ("AUSA"s) working on the
case "were involved in separate trials." Hearing at 57. When
asked on cross-examination what was the other reason for the
delay, McGowan testified that "I don't know what the Judge's
appointment was when he told the U.S. Attorney to appear. We
don't contact the Judge. We go through the U.S. Attorney's
office." Id. Later in the hearing, AUSA Carlos Suddath, who was
one of the two prosecutors working on the case, asserted that
McGowan's testimony supported the contention that the government
had provided a satisfactory explanation for the delay. He noted
that both he and the other AUSA working on the case, Thomas
Martir, were occupied with other trials. Suddath agreed with the
district court that his trial was on the same floor as Judge
Giles's chambers but explained the delay in sealing by stating
that "we also must fit in with the Judge's schedule." Id. at 70.
Because the issue of suppressing the tapes was raised
for the first time that day, the district court allowed the
prosecution time to file a supplemental brief, opposing the
defendants' motion to suppress. The reasons, given by the
government in its brief, mirrored those given at the initial
hearing on the motion. The government noted that from October 15
to November 15, 1991, AUSA Suddath was on trial before Judge
Kelly in a major criminal trial. During the "first two weeks" of
November 1991 AUSA Martir was involved in "substantial pretrial
preparation in a complex defense procurement fraud case" which
was scheduled to begin on December 3, 1991. The government
stated that this involved a substantial amount of time outside
the office as Martir interviewed approximately twenty potential
witnesses. In addition, Martir was responsible for two
sentencing hearings during the first week in November, a
detention hearing during the second week in November, and the
preparation of the complaints and arrest warrants for Santiago
Gonzalez and Mordago. The government also noted that Judge Giles
was unavailable between September 30 and November 4, 1991,
because he was sitting by designation in the Virgin Islands.
Although finding the delay in sealing the October tapes "somewhat
more troublesome" than the delays associated with the August and
September tapes, the district court held the October tapes
admissible. Dist. Ct. Order at 4. After subtracting the four
days in which Judge Giles was unavailable, four weekend days, and
the Veteran's Day holiday, the district court concluded that the
delay in sealing the October tapes amounted to twelve working
days.7 The district court held that "since the delay here falls
7
. In fact, the time period between October 29 and November 18,
1991, included three weekends which, using the district court's
methods, would amount to a delay of ten working days. We are
aware that we discounted weekend days in Carson in the situation
of a taping order expiring on a Wednesday and tapes being sealed
the next Monday and of an order expiring on a Thursday and the
tapes being sealed the next Wednesday. We held there that the
tapes were sealed immediately. 989 F.2d at 1498. However,
eliminating the days of one intervening weekend is very different
from eliminating the days of multiple intervening weekends. We
within the ambit of the rough rule of thumb suggested in Carson,
the tapes are admissible." Id. at 7.
We interpret the district court's order to hold that
the October tapes had been sealed "immediately" under the
statute. Thus, the district court did not address the question
of whether there was a satisfactory explanation for the
government's delay in sealing the tapes.8 However, because the
government concedes that the October tapes were not sealed
immediately, a conclusion with which we agree, the question now
turns to whether the government has offered a satisfactory
excuse. Because this is a question of law subject to plenary
review, and the record before us is complete, we are in a
position to decide it.
C.
The primary reason offered by the government for the
delay in sealing the October tapes is the workload of the AUSAs
responsible for prosecuting the case. In support of its
assertion that a prosector's workload can serve as a satisfactory
(..continued)
do not address here the propriety of subtracting the days of
multiple intervening weekends in determining the length of the
delay.
8
. In making its finding, the district court did hold that it
was permissible to include the days Judge Giles was unavailable.
The district court made no substantive findings, however, with
regard to the work schedules of the two AUSAs prosecuting the
case. The court made passing reference to the fact that the
October tapes were sealed "the first working day after AUSA
Suddath completed a month-long trial." Dist. Ct. Order at 4. No
mention was made of AUSA Martir.
excuse, the government points to language in Carson, 969 F.2d at
1498, and decisions from several other courts of appeal. See
United States v. Pedroni, 958 F.2d 262 (9th Cir. 1992) (fourteen
day delay permitted); United States v. Rodriguez, 786 F.2d 472
(2d Cir. 1986) (same); United States v. Scafidi, 564 F.2d 633 (2d
Cir. 1977) (7 day delay permitted), cert. denied, 436 U.S. 903
(1978).9
A review of these cases reveals that there are
substantial differences between them and the present dispute.
Moreover, the only language we find in Carson which suggests
support for the proposition asserted by the government that
"[t]his Court . . . has recognized that personnel shortages,
including the trial schedule and work responsibilities of a
prosecutor, may be a 'satisfactory explanation'" is the
statement:
We recognize that there may be
limited special circumstances apart from the
administrative practicalities of obtaining a
sealing order that would justify some delay.
9
. The government's brief also directs us to our opinion in
Vastola III, 989 F.2d at 1327-28 n.1 (view of Nygaard, J.) in
support of the government's assertion that "personnel shortages,
including the trial schedule and work responsibilities of a
prosecutor, may be a 'satisfactory explanation' for a sealing
delay." The dispute in Vastola III involved the question, inter
alia, of whether the government's mistaken view of the law was an
objectively reasonable one at the time. The dispute did not
involve a question of whether administrative difficulties or
attorney caseload might be a satisfactory explanation for a delay
in sealing tapes. We regard the language in footnote 1
concerning an attorney's caseload as dictum, given that such
language was not relevant to our decision in Vastola III.
969 F.2d at 1498. However, in Carson we then went on to discuss
United States v. Massino and the adequacy of an excuse if the
need for it was brought about by "unusual and unforeseeable"
circumstances -- not by normal, albeit heavy, work schedules.
In Massino, the defendants moved to suppress
surveillance tapes which the government sealed after a delay of
fifteen days. The government claimed that the delay was caused
by the need to divert resources for "an immediate, sensitive and
comprehensive investigation into a 'leak' of information"
concerning the electronic surveillance of the defendants. 784
F.2d at 154 n.2. The government, fearful that the leak would
jeopardize its ongoing investigation and expose confidential
informants to danger, devoted all its resources to finding the
leak.
While the court of appeals in Massino expressed concern
about the length of delay, it ultimately held that the tapes
should not be suppressed. Id. at 158. The court based its
decision, in part, on the "lack of foreseeability that a large
investigation would be needed" and that the leak represented an
"urgent matter." Id. Massino then does represent a "limited
special circumstance" in which a delay attributable to events
unrelated to the sealing of the tapes is found to be a
satisfactory explanation.
In Carson, we noted that "on occasion [a satisfactory
explanation] can be supplied by an extraneous unforeseen emergent
situation." 969 F.2d at 1487 (citing Massino, 784 F.2d at 157).
However, we held that the facts presented in Carson did not
constitute a satisfactory explanation. The need to enhance the
audibility of the tapes was "readily foreseeable and could just
as readily become routine." 969 F.2d at 1498. We distinguished
Massino, where there was "an unexpected, urgent need for
investigation of a damaging leak. Such a situation is unusual
and unforeseeable." Id.
We find the excuse offered by the government in the
present case closer to the excuse in Carson than to that in
Massino. AUSA Suddath's trial was foreseeable. In fact, he had
been working on the same trial for two weeks prior to the
termination of the surveillance operation. Similarly, there was
nothing in AUSA Martir's caseload that was unusual. The
government asserts that Martir's caseload increased unexpectedly
when Santiago Gonzalez and Mordago were arrested on November 8,
1991. This increase is more consistent with the expected flow of
cases into the United States Attorney's office than it is with
the type of emergency described in Massino. In addition, the
government acknowledged during oral argument that it could have
assigned any one of the many AUSAs in the Eastern District to
process the sealing of the tapes before Judge Giles. The
government also conceded that the sealing was a "relatively
simple procedure under the facts here." In response to a
question concerning the mechanics of a sealing, the government
responded:
They are very limited, your Honor. My
estimate to the court is that in terms of the
total time for example for that to be
accomplished in front of the district court
judge, we're not talking about more than
fifteen minutes. It is simply a matter of
our assembling the tapes, putting them into
boxes, taking them over to the courthouse,
presenting them to the judge with a sealing
order. The tapes are physically sealed in
front of the judge. He initials the corners
of the parcel, the box in which they are
sealed to make sure that it can't be opened
without its being noticed. We then take them
down to the clerk's office where they are
given to a designated clerk and I believe
kept in the district court clerk's safe.
The other cases cited by the government in support of
its position are also distinguishable. The government cites
Rodriguez for the proposition that a fourteen day delay was
permitted when the supervising attorney was preoccupied with
another trial. A closer reading of Rodriguez reveals that this
excuse was but one of many factors relied upon by the court in
vacating the district court's suppression order. The court of
appeals credited the government's explanation that the "bulk of
the delay was caused in part" by the prosecutor's mistaken belief
that a comprehensive report had to be filed at the time the tapes
were sealed. 786 F.2d at 478. While the prosecutor's workload
in Rodriguez was a factor in finding time to prepare the report
she mistakenly believed was needed, the primary rationale for the
delay was the belief that a comprehensive report was needed in
the first place, an excuse which the government does not claim is
applicable here.
The government cites Scafidi for the proposition that a
seven day delay was permissible when the prosecutor was
preoccupied with an upcoming trial. While this was the only
reason provided for the delay, the court held that the government
"presented a satisfactory explanation for this short delay."
Scafidi, 564 F.2d at 641 (emphasis added). As we noted in
Carson: "The length of a sealing delay is a relevant factor in
considering whether an explanation is satisfactory," 969 F.2d at
1498 (citing United States v. McGrath, 622 F.2d 36, 42 (2d Cir.
1980)). We are not faced with a seven day delay in the present
case. We do not, therefore, need to determine if such a delay
would be acceptable in this circuit.
Perhaps the closest case to the present is Pedroni, in
which the government offered two reasons for the fourteen day
delay in sealing the tapes: the heavy workload of the FBI agent
responsible for preparing the tapes for sealing and the
unavailability of the judge. Notwithstanding the fact that the
reasons provided by the government in Pedroni are comparable to
the explanations here, our decision in Carson steers us away from
delays caused by a prosecutor's ordinary responsibilities,
despite how onerous those ordinary responsibilities may be. To
the extent that Pedroni supports the government's position, we
decline to follow it.
In summary, we conclude that a prosecutor's routine
duties, hectic as that routine may be, are not a satisfactory
explanation for failing to comply with the immediacy requirement
of § 2518(8)(a). Were we to agree with the government, we would
be rendering extraordinary that which is ordinary. We decline to
do so.
D.
The second rationale offered by the government is that
Judge Giles's unavailability should be considered a satisfactory
explanation for a part of the delay. The courts of appeal which
have considered the question of whether a judge's absence can
serve as a satisfactory excuse have reached opposite conclusions.
Compare United States v. Pedroni, 958 F.2d 262, 266 (9th Cir.
1992) ("unavailability of the issuing or supervising judge may
constitute a satisfactory explanation for a sealing delay"); with
United States v. Rodriguez, 786 F.2d 472, 476 (2d Cir. 1986)
(government's reliance on the absence of issuing judge to explain
part of the delay is unacceptable given prior Second Circuit
decisions which made clear that other judges could properly seal
tapes). In reaching its decision in Pedroni, the Ninth Circuit
expressly relied upon prior Second Circuit decisions which held
that a judge's unavailability could serve as a satisfactory
explanation for a delay in sealing. See United States v. Fury,
554 F.2d 522, 533 (2d Cir. 1977) (six day delay reasonably
explained by unavailability of issuing judge who was on
vacation), cert. denied, 436 U.S. 931 (1978); United States v.
Poeta, 455 F.2d 117, 122 (2d Cir.) (thirteen day delay approved
where agents assumed issuing judge must seal tapes), cert.
denied, 406 U.S. 948 (1972). However, subsequent to Fury and
Poeta, the Second Circuit noted in United States v. Vazquez, 605
F.2d 1269, 1280 n.25 (2d Cir.), cert. denied, 444 U.S. 981
(1979), that "tapes sealed by a judge other than the 'issuing
judge,' because of the absence or unavailability of the latter,
are considered properly sealed." This language in Vazquez was
the express basis for the Second Circuit's later decision in
Rodriguez that it would no longer consider a judge's
unavailability as a satisfactory excuse for a sealing delay.
Judge Giles, who had approved the initial authorization
and both extensions to conduct electronic surveillance of Paz's
cellular phone, was unavailable before November 4, 1991, because
he was sitting in the Virgin Islands. We find, however, that
the fourteen day delay after Judge Giles's return is excessive
under the standards of Ojeda Rios. For this reason, we do not
need to, and we will not, decide whether the absence of the
supervising judge, in and of itself, is sufficient excuse for any
delay in sealing. Nevertheless, we do note in this regard, that
any judge in the district can order the tapes sealed, as did
Judge Kelly on October 10, 1991.
E.
The final argument for admissibility of the tapes
arises from the fact that the FBI exercised elaborate and
painstaking procedures to insure their integrity. As the
district court found, the tapes remained "sealed (although not
officially under judicial holograph), locked away in secure
evidence storage, unbudged and untouched" prior to the judicial
sealing and the "actual integrity of the tapes has not been
challenged." Dist. Ct. Order at 6. But as the Supreme Court
held in Ojeda Rios, "[t]o hold that proof of nontampering is a
substitute for a satisfactory explanation is foreclosed by the
plain words of the sealing provision." 495 U.S. at 264-65.
Because we find that the government has failed to offer a
satisfactory explanation for the delay in sealing the October
tapes, § 2518(8)(a)'s "explicit exclusionary remedy" must be
employed. Id. at 260.
IV.
Given our decision that the October tapes should have
been suppressed, we now turn to the question of whether the
admission of the October wiretap evidence was harmless error. At
oral argument, we invited the parties to submit briefs addressing
the issue of harmless error. We have carefully reviewed these
submissions.
As a preliminary matter, the convictions for use of a
communication facility, which are based on communications
intercepted and recorded on the October tapes, will be reversed.
Quintero was convicted of three such counts: Count Seventeen,
based on an October 11, 1991, telephone call; Count Nineteen,
based on an October 23, 1991, telephone call; and Count Twenty,
based on an October 26, 1991, telephone call. Santiago Gonzalez
was convicted on Count Twenty-One, based on an October 28, 1991,
telephone call. Mordago was convicted on Count Eighteen, based
on an October 12, 1991, telephone call. Without the October
tapes, the government concedes that there is no evidence to
sustain the defendants' convictions on these counts.10
We now turn to those convictions which require a more
extensive review of whether the admission of the October tapes
constituted harmless error. In making this assessment, we first
must determine whether the error alleged is constitutional or
nonconstitutional. See United States v. Grayson, 795 F.2d 278,
290 (3d Cir. 1986) (finding that challenged jury instruction did
not affect any possible constitutional right, court applied
10
. In its supplemental brief the government states that Maria
Rodriguez's conviction on the telephone count should be reversed
if the October tapes are suppressed. Rodriguez was indicted on
two counts of use of a telephone to facilitate the conspiracy in
Count One. Count Thirteen was based on a telephone call on
September 5, 1991, and Count Fifteen was based on a telephone
call on October 10, 1991. At trial, Rodriguez was convicted on
Count Thirteen, but acquitted on Count Fifteen. This result is
confirmed in both the docket sheet and sentencing report signed
by the district court. Given the fact that Rodriguez was not
convicted on the telephone related count based on her October 10,
1991, conversation with Paz, there is no need to reverse. Her
convictions will be discussed infra.
"highly probable" standard of appellate review to assess the
question of harmless error), cert. denied, 481 U.S. 1018 (1987).
We find that the dispute here involves a claim of
nonconstitutional error in that it is based solely on a violation
of § 2518(8)(a). Therefore, in deciding whether the admission of
the October tapes constituted harmless error, we must evaluate
whether it is "highly probable that the evidence did not
contribute to the jury's judgment of conviction." Government of
Virgin Islands v. Toto, 529 F.2d 278, 284 (3d Cir. 1976). "'High
probability' requires that the court have a 'sure conviction that
the error did not prejudice the defendant,' but need not disprove
every 'reasonable possibility' of prejudice." Grayson, 795 F.2d
at 290 (quoting United States v. Jannotti, 729 F.2d 213, 219-220
n.2 (3d Cir.) cert. denied 469 U.S. 880 (1984)). We will review
each defendant's convictions applying this standard.
A. Jose Gonzalez-Rivera
The jury found Jose Gonzalez-Rivera guilty of one count
of conspiracy to distribute in excess of five kilograms of
cocaine (Count One), one count of engaging in a CCE (Count Two),
two counts of possession with intent to distribute cocaine
(Counts Five and Six), and one count of use of a communication
facility to facilitate the conspiracy in Count One (Count Eight).
None of Gonzalez-Rivera's convictions were based directly on
conversations recorded on the October tapes.
Gonzalez-Rivera's conviction on the telephone count
(Count Eight) was based on a conversation between Paz and
Gonzalez-Rivera on August 9, 1991. We have held that the August
tapes were admissible. Admission of the October tapes was
clearly harmless as to the conviction on this count.
The evidence on the remaining counts against Gonzalez-
Rivera was substantial. Count Five was based on the fifteen
kilograms of cocaine seized by the New Jersey police when Cruz
and Rosario were stopped on the New Jersey Turnpike on June 26,
1991. Paz testified that he and Rosario had travelled to New
York in late June 1991 in order to receive this cocaine from
Gonzalez-Rivera. Paz testified that, although he returned to
Philadelphia before the cocaine had been delivered, Gonzalez-
Rivera called him to report that it had arrived.
Count Six was based on the seizure of six kilograms of
cocaine from the residence of Lopez-Ortega on July 15, 1991.
Regarding this cocaine, Paz testified that he had travelled to
New York in a load car rented from MRK in order to pick up a
large quality of cocaine from Gonzalez-Rivera. Paz further
testified that he accepted twenty kilograms of cocaine from
Gonzalez-Rivera but that he did not like the quality of the
remaining six kilograms, nor would they fit into the concealed
compartment of his car. According to Paz, Gonzalez-Rivera called
Ortega and asked that he remove the remaining six kilograms of
cocaine from Gonzalez-Rivera's residence because Gonzalez-Rivera
was concerned that law enforcement officials were conducting
surveillance of him and Paz. Surveillance did in fact establish
that Ortega then transported a gym bag from Gonzalez-Rivera's
residence in the Bronx to Lopez-Ortega's residence in Queens, New
York. A gym bag containing six kilograms of cocaine was seized
from Lopez-Ortega's residence that evening. Because of the
strong evidence in support of Counts Five and Six, we find that
the introduction of the October tapes was clearly harmless as to
Gonzalez-Rivera's convictions on these counts.
Gonzalez-Rivera asserts, however, that the admission of
the October tapes constituted prejudicial error in regard to the
conspiracy and CCE convictions (Counts One and Two) because two
telephone conversations, recorded in October, were used to
establish his connection to Guillermo (a/k/a Memo), a drug
supplier in Medellin, Colombia. Gonzalez-Rivera asserts that
these conversations supported the government's contention that he
was a "leader of a Medellin cocaine cartel 'cell' in New York
City" as alleged in Count One.
Gonzalez-Rivera was not recorded on either of these
October tapes. Both of these calls involved Paz and Rodriguez
and took place on October 11, 1991. During the first
conversation, Rodriguez relayed a message from Gonzalez-Rivera to
Paz for Paz to call Guillermo in Medellin, Colombia, regarding a
$6,000 payment that Guillermo was demanding. Rodriguez supplied
Paz with Guillermo's phone number in Medellin. Immediately after
his conversation with Rodriguez, Paz attempted to call Guillermo.
When Paz supplied Guillermo's number to the operator, the
operator told Paz that the call could not be billed to Paz's
cellular telephone. At this point, the call was interrupted on
"call waiting" by Rodriguez. During this second conversation,
Rodriguez informed Paz that Gonzalez-Rivera wanted Paz to call
him immediately instead of talking to Guillermo. Paz's trial
testimony confirmed the content of these conversations.
Gonzalez-Rivera's defense depended in part on his own
testimony that he was not a member of the Medellin cartel. On
direct examination, Gonzalez-Rivera testified that Memo was a
loan shark in New York from whom Gonzalez-Rivera had borrowed
$6,000.11 In an effort to impeach Gonzalez-Rivera's testimony
11
. Gonzalez-Rivera testified on direct examination as follows:
Q: There was great deal of testimony about a
guy named Memo, do you remember that?
A: Yes, I remember the man.
Q: Tell the jury who Memo is?
A: Memo is a big shot in New York that lent
me money. He lent me six thousand dollars.
Q: Is Memo a loan shark?
A: Yes.
Q: Now, when did you talk to Memo about
getting six thousand dollars?
A: After Mr. Paz, he owed me the money.
Q: After Mr. Paz promised you the six
thousand dollars?
concerning Memo, the government on cross-examination questioned
Gonzalez-Rivera with regard to the two telephone conversations.12
(..continued)
A: Yes.
Trial Transcript ("TT") at 51 (Sept. 16, 1992).
12
. The government cross-examined Gonzalez-Rivera as follows:
Q: And Memo is this loan shark who lives in the Bronx?
A: Yes.
Q: You have been feeding Paz's ego by saying
that he lives in Colombia?
A: No.
Q: You never said that?
A: No.
Q: You never told Maria Rodriguez to tell Paz
to call Memo in Colombia?
A: Yeah, I told Maria. I told Maria, but I
gave a fax number. He never went through
with it because he never talked to me, Memo.
Q: You heard the phone call where he tried to
call Colombia?
A: Yeah. You hear, he never talked to Memo.
Q: Did you hear the operator say that the
billing was denied?
A: Yes.
Q: So he could not charge the call?
A: Yes, but he never got through with it. I
know that that's not a telephone number for
Memo.
In addition, the government made reference to the conversations
during its closing argument as evidence of Gonzalez-Rivera's
connection to Medellin.
Gonzalez-Rivera asserts prejudice in that the telephone
conversations provided confirmation of Paz's testimony on direct
examination that Gonzalez-Rivera received large quantities of
cocaine from suppliers in Medellin. He contends that the
combined effect of the use of these recordings constituted
prejudicial error leading to his conviction on the conspiracy and
CCE counts.
In conducting the harmless error analysis, we must keep
in mind that the government produced admissible testimony by Paz,
a participant in the calls, about the calls. However, would the
jury have credited Paz's uncorroborated version of the calls
without any other support? We must consider whether the jury's
exposure to the content of the calls induced the jurors to give
undue credit to Paz's testimony, rather than to Gonzalez-
Rivera's.
(..continued)
Q: Why would you give a telephone number of a
loan shark that you met in the Bronx? Why
did you give a number to Medellin in Colombia
to Paz?
A: That's what they wanted to hear, Paz.
Q: This was part of you feeding his ego?
A: Yes.
TT at 114-15 (Sept. 16, 1992).
There is precedent, however, to support the admission
of the content of the tapes for impeachment purposes even if the
tapes were inadmissible on the merits of the government's case.
In view of Gonzalez-Rivera's testimony on direct examination
about his relationship with Memo, the tapes of the calls could
have been used to attack Gonzalez-Rivera's credibility. Even
though the two conversations should not have been admitted during
the government's case-in-chief, unlawfully obtained evidence may
be used to impeach the direct testimony a defendant gives at
trial. See Walder v. United States, 347 U.S. 62, 65 (1954). In
Walder, the Supreme Court held that it was permissible for the
government to use testimony regarding drugs obtained in an
illegal search to impeach the testimony of the defendant that he
had never possessed any narcotics.
On direct examination here, Gonzalez-Rivera testified
that Memo was a loan shark in New York to whom Gonzalez-Rivera
owed $6,000. As a result, the issue of Gonzalez-Rivera's
relationship to Memo was clearly brought into question by
Gonzalez-Rivera's direct testimony. Once he put his relationship
to Memo in issue by offering the loan shark explanation, the
government was entitled to rebut this explanation by showing that
Gonzalez-Rivera's testimony was untrue. Although the content of
these two tapes was admissible only to impeach Gonzalez-Rivera's
testimony about Memo, and not admissible as direct evidence of
Gonzalez-Rivera's involvement with Memo, it was precisely this
aspect of the testimony that Gonzalez-Rivera complains of, i.e.,
that the jury believed Paz, rather than Gonzalez-Rivera, on the
question of Gonzalez's relationship with Memo and the Medellin
cartel. Because this element of the evidence, the impeachment
factor, was permissible under the circumstances, we find the
spill over into the merits of the government's case to be
harmless.13
Moreover, our review of the record indicates that the
other evidence, tying Gonzalez-Rivera to the Medellin cartel, was
13
. The use of the October calls to impeach Gonzalez-Rivera is
further supported by his testimony during the initial phase of
the government's cross-examination. See United States v. Havens,
446 U.S. 620 (1980). On cross-examination, Gonzalez-Rivera
testified that many of his telephone conversations with Paz
recorded by the government during August and September 1991
concerned $6,000 that Paz owed him from an earlier debt, money
which Gonzalez-Rivera testified he planned to use to pay off
Memo. In Havens, the Supreme Court considered whether "evidence
suppressed as the fruit of an unlawful search and seizure may
nevertheless be used to impeach a defendant's false trial
testimony, given in response to proper cross-examination, where
the evidence does not squarely contradict the defendant's
testimony on direct examination." 446 U.S. at 621. While Walder
is more on point to the present case because Gonzalez-Rivera did
testify as to Memo's identity on direct examination, Havens is
also instructive. The Supreme Court held that "a defendant's
statements made in response to proper cross-examination
reasonably suggested by the defendant's direct examination are
subject to otherwise proper impeachment by the government, albeit
by evidence that has been illegally obtained and that is
inadmissible on the government's direct case, or otherwise, as
substantive evidence of guilt." Id. at 627-28. Not only could
the government use the fact of the two calls to impeach the
defendant's direct testimony that Memo was a loan shark in New
York, such evidence could have been used to impeach the
defendant's credibility based on his testimony during cross-
examination.
substantial. Paz testified that Gonzalez-Rivera served as one of
his major cocaine suppliers. In describing his trip to Gonzalez-
Rivera's residence in April, 1991, to pick up fifteen kilograms
of cocaine from Gonzalez-Rivera and Cruz, Paz testified that
Gonzalez-Rivera received his cocaine from Medellin.
Q: Now, you've testified that with respect to
Jose Gonzalez-Rivera, that the cocaine that
he received came from Medellin, Colombia?
A: Yes, sir.
Q: How did you know that?
A: Because the telephone calls that he was
making to Colombia, he made a lot of calls in
front of me.
Q: And what were those calls? What was discussed
during those calls that you were present during that
period?
A: Well, when we lost 15 kilos on the turnpike, that
was one of the things that he had to call down there,
to Medellin to talk to his bosses about, and the other
one was some money -- they stole some merchandise from
me in Philadelphia.
Q: When you refer to merchandise, what are
you referring to?
A: Cocaine.
Q: Now, did you know the names of the
individuals that Jose Gonzalez would speak to
in Colombia?
A: Yes. Guillermo.
Q: Did you ever get to know an individual by
the name of Memo?
A: No, I didn't meet him. I did not speak to
him, but Jose did speak to me about him.
Q: Who was Memo to Jose Gonzalez-Rivera?
A: His boss.
Q: His boss for what?
A: For cocaine.
. . .
Q: So Guillermo and Memo are one in [sic] the same?
A: Yes, sir.
TT at 27-29 (Sept. 2, 1992; Afternoon Session).
The government presented other evidence of Gonzalez-
Rivera's connection to Memo: During a conversation recorded on
August 1, 1991, Paz and Gonzalez-Rivera discussed Cruz's arrest
and the seizure of the fifteen kilograms of cocaine; Paz
testified that they discussed the need to send Cruz's arrest
papers to Memo in Medellin, in an effort to justify the loss of
the fifteen kilograms; during a conversation recorded on August
17, 1991, Paz and Gonzalez-Rivera discussed a cocaine
transaction; when Paz informed Gonzalez-Rivera that he could get
a very high price for cocaine, Gonzalez-Rivera responded that he
was "gonna call that man down south"; Paz testified that he
understood the defendant to be referring to Memo in Medellin.14
Paz testified that he understood these references to be to Memo.
14
. This was one of several instances in which Gonzalez-Rivera
makes reference to a "man down south" in connection with a
payment or debt for cocaine or in connection with a drug
transaction.
In another telephone conversation, recorded on
September 21, 1991, Gonzalez-Rivera told Paz that Gonzalez-Rivera
had given up a piece of property in Colombia as security for a
debt of $34,000 that Paz owed to Gonzalez-Rivera and that
Gonzalez-Rivera in turn owed to "that man." Paz testified that
Gonzalez-Rivera owned a condominium and large farm in Medellin.
In total, Paz testified in regard to fifteen telephone
conversations, between himself and Gonzalez-Rivera, which were
recorded by the government wiretap between August 1 and October
29, 1991. Thirteen of these recordings were properly admitted.
The jury had the opportunity to listen to each of these
conversations and at the same time to review a transcript of
them. Paz pointed out specific portions of each telephone call
in which he and Gonzalez-Rivera discussed their drug business.
The government also presented the testimony of FBI
agent Harold Clouse as an expert witness in the field of drug
jargon analysis. Clouse reviewed the entire set of tape
recordings and testified as to eight telephone conversations
between Paz and Gonzalez-Rivera. Of these eight calls, only one
was recorded during October. The other seven were properly
admitted.
Clouse testified that a majority of these calls were
drug related. For instance, he testified that a telephone
conversation between Paz and Gonzalez-Rivera, recorded on August
14, was a drug related call in which Gonzalez-Rivera quoted Paz a
price for a kilogram of cocaine and they discuss how much Paz
could charge his buyers for it. Clouse testified that there were
other references in this conversation to cocaine which Gonzalez-
Rivera planned to supply to Paz. In addition, Clouse testified
that three days later, on August 17, Paz and Gonzalez-Rivera
engaged in a drug related conversation in which they discussed
the price of a kilogram of cocaine. In connection with this
telephone call, Paz described how the cocaine he received from
Gonzalez-Rivera was supplied to Gonzalez-Rivera: A call would be
made to an individual in Colombia, that person would call New
York to authorize delivery of cocaine, and the cocaine would be
delivered the next day. Asked how he knew about this
arrangement, Paz responded that Gonzalez-Rivera had explained it
to him. Paz testified that, after these arrangements were made,
he would pick up his cocaine at Gonzalez-Rivera's residence in
the Bronx.
In addition, FBI agent McGowan testified that at the
time of Gonzalez-Rivera's arrest, Gonzalez-Rivera had Memo's
telephone number handwritten on several pieces of paper in his
wallet. This number corresponded to a telephone number that, at
the time of Paz's arrest, Paz had in his address book under the
name of Guillermo.
Despite this evidence, Gonzalez-Rivera asserts that the
admission of the two October calls constituted prejudicial error.
It is true that the government made reference to the two October
calls during its closing argument as evidence of Gonzalez-
Rivera's connection to Medellin. We find, however, that the
references to these two phone conversations were merely
cumulative of other substantial evidence connecting Gonzalez-
Rivera to this conspiracy.
We conclude that, in light of all this evidence,
Gonzalez-Rivera was not prejudiced by the erroneous admission of
the October tapes. For that reason, their admission was harmless
as to his conviction on Counts One and Two. See United States v.
Jannotti, 729 F.2d at 219-20 (to find error harmless, we must
have a sure conviction that the error did not prejudice the
defendant; yet we need not disprove every possibility of
prejudice). We will uphold Gonzalez-Rivera's convictions on all
of the counts for which he was convicted.
B. Maria Rodriguez
Maria Rodriguez was convicted of one count of
conspiracy to distribute in excess of five kilograms of cocaine
(Count One) and one count of use of a communication facility to
facilitate the conspiracy in Count One (Count Thirteen). The
conviction on Count Thirteen was based on a September 5, 1991,
phone call. Since we have held that the September tapes were
admissible, the admission of the October tapes was clearly
harmless error as to Count Thirteen.
Turning to the conspiracy conviction, Rodriguez in her
supplemental brief adopted the arguments advanced by Gonzalez-
Rivera as to the prejudicial effect of the admission of the
October tapes. The government asserts that the admission of the
October tapes constituted harmless error based on the substantial
evidence, excluding the October calls, against Rodriguez.
The government's evidence against Rodriguez consisted
of testimony by Paz and FBI agent Clouse about items seized from
the defendant at the time of her arrest15 and about five
telephone conversations between the defendant and Paz. Two of
the five conversations were recorded in September 1991, with the
remaining three recorded in October 1991. Paz testified as to
all five calls and his participation in them. Clouse testified
as to four of the five calls, identifying each as drug related.
The first of these calls was made on September 5. In
it, Paz and Rodriguez discussed Paz's request for five kilograms
of cocaine in exchange for $100,000 and of an additional five
kilograms of cocaine on consignment. Rodriguez asked Paz, "[F]or
how many are you striking for?" Paz responded, "Okay, tell him
that we can get five for cash and five on credit for me." Paz
testified that he had made this telephone call to Rodriguez at
home because he believed Gonzalez-Rivera's telephone at work was
being tapped. He further testified that Rodriguez was acting as
15
. These items included a receipt for a $25 money order for
Jose Cruz; the work and beeper numbers for Gonzalez-Rivera; the
home, beeper, and cellular telephone numbers for Paz; and the
home phone numbers of Ortega and another codefendant.
a messenger for Gonzalez-Rivera. Clouse confirmed that this call
was drug related.
During the September 6 call, Paz informed Rodriguez
that $15,000 from another drug deal had been stolen from him the
night before at Rodriguez's cousin's house in New York. During
this conversation, Rodriguez told Paz that she thought he had
lost "material" or "sugar for coffee." Clouse testified that
Rodriguez's use of the word "material" was a code word for
cocaine and that this was a drug related call.
Two of the October calls took place on October 11,
1991. The third October call took place on October 17, 1991.
During it, Rodriguez urged Paz to call Gonzalez-Rivera.
Rodriguez expressed concern that Paz and Gonzalez-Rivera were not
talking to each other, at which point Paz responded that he
needed work to pay his debts. Clouse identified this as a drug
related call in which Paz told Rodriguez that he needed cocaine
to sell. Paz's testimony confirmed Clouse's interpretation.
In adopting the prejudicial error argument advanced by
Gonzalez-Rivera, Rodriguez is essentially asserting that the
October calls had the effect of tying her to the conspiracy.
However, we agree with the government that Rodriguez's September
5, 1991, conversation established her active role in the
conspiracy. In conducting a harmless error analysis, we need
not disprove every reasonable possibility of prejudice to the
defendant. Rather, we shall affirm in those cases in which we
have a sure conviction that the error did not prejudice the
defendant. See Jannotti, 729 F.2d at 219-20. In this instance,
we conclude that the evidence of the September 5, 1991, call and
the testimony concerning its substance is sufficient to affirm
Rodriguez's conviction.
C. Santiago Gonzalez
Santiago Gonzalez was convicted of one telephone count
which was based on the tape of an improperly admitted October
phone call (Count Twenty-One). The government concedes that his
conviction on this count must be reversed and we will do so.
Gonzalez's remaining convictions include conspiracy to distribute
in excess of five kilograms of cocaine (Count One) and two counts
of distribution of cocaine (Counts Fourteen and Sixteen).
Gonzalez's argument concerning the prejudicial impact
of the October tapes is, in our view, intertwined with his other
arguments on appeal. Consequently, we will consider all of his
contentions together. He advances three major challenges to his
convictions.
First, Gonzalez contends that the district court
committed plain error when it failed, sua sponte, to sever his
trial from Joaquin Mordago's once it became clear that "Mordago's
antagonistic defense prevented [Gonzalez] from receiving a fair
trial." Gonzalez contends that Mordago's "authorized informant"
defense was antagonistic to his own defense, thereby presenting
the jury with no option but to convict at least one of them.
Gonzalez claims that once Mordago's defense unfolded at trial,
the district court was required to grant a mistrial and
severance.
Second, Gonzalez asserts that his conspiracy conviction
should be vacated because there was a variance between the single
conspiracy charged in the indictment and the evidence presented,
which demonstrated multiple conspiracies. Gonzalez contends that
the prejudice resulting from the purported variance was the
impact it had on the district court's decision to try all of the
defendants together rather than sever Gonzalez's trial from his
co-defendants' or later from Mordago's.
Third, Gonzalez contends that the admission of the
October tapes was not harmless error because it supplied the only
evidence to support the government's contention that Gonzalez was
part of the single conspiracy alleged in Count One. As a result,
the admission of the October tapes compounded the purported error
of the variance between the single conspiracy charged in Count
One and the multiple conspiracies which Gonzalez claims were
described at trial. While Gonzalez did not expressly set out the
prejudicial impact flowing from the admission of the October
tapes, it is clear from his assertion relating to the "variance"
challenge that he contends that it was only through the October
tapes that the government established that Gonzalez was aware
that Paz had other sources of supply. In sum, Gonzalez asserts
that these three errors, individually and cumulatively,
prejudiced his right to a trial separate from co-defendant
Mordago, given the claim that Mordago presented a mutually
antagonistic defense. Because we find that Gonzalez was not
prejudiced in this manner, we hold that his convictions must be
upheld.
i. Gonzalez's Claim of Variance
A defendant alleging a variance between a single
conspiracy charged in an indictment and the proof presented at
trial must demonstrate, first, that there was such a variance
and, second, that the variance prejudiced one of his substantial
rights. United States v. Kelly, 892 F.2d 255, 258 (3d Cir. 1989)
(citing United States v. Schurr, 755 F.2d 549, 553 (3d Cir.
1985)). However, even if we were to find that Gonzalez has
demonstrated that a variance existed here, we are not convinced
that he was prejudiced.
First of all, in the matter of the variance, a single
drug conspiracy may involve numerous suppliers and distributors
operating under the aegis of a common core group. United States
v. Theodoropoulos, 866 F.2d 587 (3d Cir. 1989). To establish a
single conspiracy, the prosecutor need not prove that each
defendant knew all the details, goals or other participants. See
United States v. Padilla, 982 F.2d 110 (3d Cir. 1992). The
prosecution must, however, demonstrate that a defendant, charging
variance, knew that he was part of a larger drug operation. Id.
at 114; Theodoropoulos, 866 F.2d at 594. Gonzalez argues that
the only way by which the government showed he was aware of the
larger operation was through two of the October telephone calls.
However, our review of the record does not support this
allegation. There was also separate testimony by Paz concerning
his discussions with Gonzalez about cocaine in New York which
needed to be treated in order to dry it. Because there was
evidence through Paz's testimony, which demonstrated that
Gonzalez was aware of the larger operation, the jury's finding of
a single conspiracy is supported even without the October tapes.
Moreover, pursuant to Kelly, demonstrating that a variance
existed is not enough. Even if there were not admissible
evidence to establish the single conspiracy, still Gonzalez must
show prejudice. In his brief, Gonzalez argues that the prejudice
he suffered from the purported variance was his being tried with
Mordago: "The prejudice to [Gonzalez] was that even though he
made a strong case for separating his trial from his co-
defendants, the district court was naturally reluctant to grant
the severance due to the fact that [Gonzalez] was charged with
being part of a single conspiracy. Consequently, he was tried
with Mordago. Mordago, in presenting his 'authorized informant'
defense, implicated [Gonzalez] in the drug conspiracy." This
claimed prejudice is the same as the claimed prejudice resulting
from Gonzalez's initial challenge, i.e., that the district court
committed plain error when it failed, sua sponte, to sever
Gonzalez's trial from Mordago's once it became clear that
Mordago's antagonistic defense prevented him from receiving a
fair trial. We will turn, therefore, to that assertion.
ii. Gonzalez's Claim of Prejudice
Gonzalez filed a pretrial motion to sever his case from
the New York based co-defendants, contending that the government
would be unable to prove a unified conspiracy and that he would
be prejudiced by being tried with these co-defendants. This
motion was denied by the district court and Gonzalez does not
challenge it on appeal. Rather, Gonzalez now asserts, for the
first time, that "unforeseen developments" at trial, i.e.,
Mordago's "authorized informant" defense, required that the
district court grant, sua sponte, a mistrial and severance as to
Gonzalez. In support, Gonzalez cites our decision in United
States v. Sandini, 888 F.2d 300, 309 (3d Cir. 1989), cert.
denied, 494 U.S. 1089 (1990), for the proposition that "[t]he
district court has to grant severance if it becomes obvious after
the commencement of trial that joinder is no longer appropriate."
As an initial matter, we do not read Sandini as broadly
as Gonzalez suggests we should. We noted in Sandini that, in
considering whether a district court committed plain error in
failing to grant a mistrial and severance sua sponte based on
developments at trial, "we acknowledge that an appropriate denial
of a pretrial motion for severance does not preclude a later
ruling that there should be a severance because of prejudice
which develops at trial." 888 F.2d at 309 (citing Schaffer v.
United States, 362 U.S. 511, 516 (1960)). Sandini does not,
however, announce a mandatory requirement for severance. A
finding that severance might be appropriate based on developments
at trial does not compel the conclusion that a severance is
required whenever a trial fails to unfold as expected. As we
proceeded to note in Sandini:
[I]t is risky business for a judge on his own
motion to declare a mistrial, as the
defendant may thereafter contend that he was
entitled to a completion of the first trial
so that a retrial is barred by double
jeopardy principles. Thus, the defendant
who, without asking for a mistrial gets one,
will surely argue, and not unreasonably, that
if he did not, as here, regard the alleged
error as serious enough even to prompt his
reaction, a court is effectively granting a
mistrial over his objection without "manifest
necessity" so that his retrial is barred.
Furthermore, we point out that declaring a
mistrial because of the conduct at trial of a
codefendant, as opposed to that of the
government, may well encourage collusive
conduct by defendants at a joint trial so as
to set the stage for mistrials and possible
reversals. The considerations we have set
forth lead us to approach [defendant's]
argument with considerable caution.
Id.
As to what was the "unforeseen development," Gonzalez
contends that he "did not anticipate . . . that Mordago would
implicate him in drug dealing, and discredit his defense that he
was a complete stranger to the drug conspiracy."
Our review of the record, however, clearly indicates
that Mordago's defense was anything but unforeseen. More than a
month before the trial, all defense counsel involved in this
case, including Gonzalez's, were alerted to Mordago's intention
to assert an authorized informant defense. On July 20, 1992,
each defense counsel was sent a copy of the government's response
opposing Mordago's pretrial motion to disqualify the United
States Attorney's Office from prosecuting him. Mordago's motion
was based on the claim that he was acting as a government
informant in connection with the charges contained in the
indictment. Govt. App. at 608 ("Consolidated Response in
Opposition to Defendant's Motions to Disqualify and Compel
Discovery"). Even a cursory reading of the government's response
reveals Mordago's intended defense. Early in its response, the
government stated: "In his motion to disqualify, Mordago claims
that he was acting as a government informant in connection with
these charges." Several pages later, the government stated: "In
his motion to disqualify, Mordago alleges that in light of the
public authority defense that he intends to assert, AUSA Cohan
may be called as [a] defense of prosecution witness." Thus,
Gonzalez's counsel was on notice at least a full month before the
trial commenced that Mordago planned to assert the government
informant defense.
Notwithstanding this information, Gonzalez failed to
amend his pretrial motion for severance.16 In addition, not once
16
. Gonzalez filed his pretrial motion for severance on May 19,
1992. This motion did not specifically allege any prejudice from
being jointly tried with Mordago. Rather, the focus of the
defendant's motion was his claim that evidence against the New
during the trial did Gonzalez's counsel object to what he now
claims were prejudicial errors made by the district court
relating to Mordago's defense. Rather, Gonzalez argues that the
court, sua sponte, should have granted a severance once Mordago's
defense became clear.
Because Gonzalez did not object to Mordago's defense or
to the failure to sever, we review the district court's action
for plain error. In reviewing for plain error, we are guided by
the Supreme Court's recent decision in United States v. Olano,
113 S. Ct. 1770, 1776 (1993) which noted that:
There must be an "error" that is "plain" and
that "affect[s] substantial rights."
Moreover, Rule 52(b) leaves the decision to
correct the forfeited error within the sound
discretion of the Court of Appeals, and the
court should not exercise that discretion
unless the error "'seriously affect[s] the
fairness, integrity, or public reputation of
judicial proceedings.'"
(citations omitted).
In order for Gonzalez to demonstrate that the district
court committed plain error, the defendant must first establish
that he was entitled to a trial separate from Mordago. If
Gonzalez fails to establish that he was entitled to a separate
trial, then our analysis must stop, for the district court would
(..continued)
York based conspirators would "spillover" and unduly prejudice
Gonzalez as it related to Count One of the indictment. The
defendant's motion, never amended to include any potential
prejudice from being joined with Mordago, was denied on August
26, 1992.
not have committed any error at all. Before turning to the
specific circumstances which form the basis of Gonzalez's claim,
we must examine the substantive aspects of a failure to sever.
In Zafiro v. United States, 113 S. Ct. 933, 936 (1993),
the Supreme Court considered whether Federal Rule of Criminal
Procedure 14 "requires severance as a matter of law when co-
defendants present 'mutually antagonistic defenses.'" 113 S. Ct.
at 936.17 After expressing the federal system's strong
preference for joint trials, the Court held that severance was
not automatically required in such cases. The Court stated:
Mutually antagonistic defenses are not
prejudicial per se. Moreover, Rule 14 does
not require severance even if prejudice is
shown; rather, it leaves the tailoring of the
relief to be granted, if any, to the district
court's sound discretion. . . . We believe
that, when defendants properly have been
joined under Rule 8(b),18 a district court
17
. Fed. R. Crim. Pro. 14 provides in part:
If it appears that a defendant or the
government is prejudiced by a joinder of
offenses or of defendants in an indictment or
information or by such joinder for trial
together, the court may order an election or
separate trials of counts, grant a severance
of defendants or provide whatever other
relief justice requires.
18
. Fed. R. Crim. Pro. 8(b) provides:
should grant a severance under Rule 14 only
if there is a serious risk that a joint trial
would compromise a specific trial right of
one of the defendants, or prevent the jury
from making a reliable judgment about guilt
or innocence.
Id. at 938 (citations omitted).
While the Court did not delineate all the circumstances
in which a defendant could be prejudiced, it did note the types
of situations in which prejudice might develop.
Such a risk might occur when evidence that
the jury should not consider against a
defendant and that would not be admissible if
the defendant were tried alone is admitted
against a codefendant. For example, evidence
of a codefendant's wrongdoing in some
circumstances erroneously could lead a jury
to conclude that a defendant was guilty.
When many defendants are tried together in a
complex case and they have markedly different
degrees of culpability, the risk of prejudice
is heightened. See Kotteakos v. United
States, 328 U.S. 750, 774-775, 66 S. Ct.
1239, 1252-1253, 90 L. Ed. 1557 (1946).
Evidence that is probative of a defendant's
guilt but technically admissible only against
a codefendant also might present a risk of
prejudice. See Bruton v. United States, 391
U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476
(1968).
Id.
(..continued)
Two or more defendants may be charged in the
same indictment or information if they are
alleged to have participated in the same act
or transaction or in the same series of acts
or transactions constituting an offense or
offenses. Such defendants may be charged in
one or more counts together or separately and
all of the defendants need not be charged in
each count.
While Gonzalez's pretrial motion was based on a
Kotteakos claim, he does not appeal the denial of that motion.
Rather, he now asserts a Bruton related violation. His claim of
prejudice is based on the proposition that Mordago's government
informant defense resulted in the admission of certain evidence,
allegedly incriminating to Gonzalez, without providing Gonzalez
an opportunity to cross-examine Mordago.
Gonzalez points to several portions of Mordago's
defense which, he alleges, specifically prejudiced his right to a
fair trial. To review these, we will start with Mordago's
release from prison on October 3, 1991. Mordago talked with law
enforcement officials three times between the time of his release
and his arrest on the current charges on November 8, 1991.
During each conversation, Mordago was advised by the government
that he was not to engage in any illegal activity until he was
authorized to do so by his parole officer or another law
enforcement official. Despite these warning, Mordago quickly
became involved in drug activity.
In his discussions with law enforcement officials on
October 10, November 5, and November 7, Mordago provided
information concerning Paz and other drug traffickers. These
discussions were recorded in FBI 302 reports, which were provided
to Mordago's counsel prior to trial. The use of these reports by
Mordago's counsel serves as the basis for Gonzalez's contentions.
Gonzalez claims that these reports bolstered Mordago's authorized
informant defense while implicating Gonzalez in the conspiracy,
thereby violating his right to a fair trial. However, our review
of the record indicates that Gonzalez's claim lacks merit.
First, Gonzalez directs our attention to Mordago's
counsel's cross-examination of Paz. There, counsel attempted to
elicit from Paz whether Mordago ever informed Paz that Mordago
had told government agents of Gonzalez's activity.19 The
government immediately objected, asserting that defense counsel
was attempting to establish through his questions the fact that
Mordago actually provided the information to the government which
was the basis of counsel's questions. The court sustained the
government's objection and reminded the jury that "the questions
of lawyers do not themselves constitute evidence . . . . You
should not assume anything from those questions because they are
not embraced in a probative answer as to the occurrence of the
19
. Cross-examination of Paz by Mordago's counsel:
Q: And [Mordago] also did not tell you that
he had provided information before the time
of his arrest on a person by the name of
Santiago Gonzalez, correct?
A: No, he didn't tell me nothing.
Q: He also didn't tell you slightly before or
after the time of your arrest, that he
provided information on drug dealing that
referred to Miami?
Government: Judge, I'll object to this line
of questioning.
TT at 45 (Sept. 11, 1992; Afternoon Session).
events assumed therein." TT at 48 (Sept. 11, 1992; Afternoon
Session). Given the court's immediate curative instruction, we
find no prejudice to Gonzalez from this attempted cross-
examination.
Gonzalez next asserts that the government bolstered
Mordago's authorized informant defense to the detriment of
Gonzalez's own defense when it offered the testimony of FBI agent
Judith Tyler, who had talked with Mordago on October 10, 1991.
Agent Tyler testified that Mordago told her that Paz was selling
between twenty-eight and thirty kilograms of cocaine a week from
a supplier in Miami. Gonzalez asserts that since the government,
through Paz's testimony, established Gonzalez as Paz's Miami
connection, the jury would have presumed that Mordago was
referring to Gonzalez when he told agent Tyler that Paz had a
Miami supplier. But agent Tyler did not testify that Mordago
informed the government that Gonzalez was Paz's Miami connection.
Moreover, there was other testimony concerning a Florida
supplier, i.e., Oscar Fuentes. At best, the jury could only
infer a connection. We do not find any undue prejudice to
Gonzalez resulting from this testimony.20
Gonzalez next claims that he was prejudiced by
statements that Mordago made to FBI agents, which statements were
20
. Gonzalez offers the same exact argument as it relates to the
testimony of AUSA Barbara Cohan concerning the October 10, 1991,
conversation with Mordago. For the reasons stated in the main
text, we do not find any undue prejudice to Gonzalez resulting
from this testimony.
testified to by the agents, despite the fact that Gonzalez did
not have the opportunity to cross-examine Mordago. Yet, the
premise for Gonzalez's purported right to cross-examine is based
on the assertion that Mordago inculpated Gonzalez when talking to
law enforcement officials. A review of the evidence suggests
otherwise.
Agent Tyler testified that Mordago told her that one of
Paz's associates, Theodore Santiago (a/k/a "Poppo"), was selling
between 100 and 150 kilograms of cocaine a week.21 Agent Tyler
mentioned this aspect of her conversation with Mordago several
times during her testimony. Each time, she stated that Mordago's
reference was to Theodore Santiago.22
21
. Theodore Santiago was one of the twelve individuals named in
the government's indictment, although he was not tried with these
defendants.
22
. Cross-examination of agent Tyler by Gonzalez-Rivera's
counsel concerning the agent's meeting with Mordago on November
5, 1991:
Q: Did [Mordago] not tell you that Mr. Paz
had an associate living in Philadelphia?
A: Yes, he did.
Q: That individual was known as Santiago, right?
A: Yes.
Q: Also known as Poppo; right?
A: Yes.
Q: Did you know who Poppo was?
A: No.
The government also presented the testimony of FBI
agent Francis Thiel, who was with agent Tyler when she met with
Mordago on November 5, 1991. Agent Thiel's testimony confirmed
that Mordago's references to Santiago during this conversation
were to Theodore Santiago, not Santiago Gonzalez.23
(..continued)
Q: Do you know who Theodore Santiago is?
A: No.
Q: [Mordago] told you, did he not, that Poppo
moved between 100 and 150 kilograms of
cocaine a week, right?
A: Yes.
TT at 24-25 (Sept. 15, 1992; Morning Session).
After this cross-examination, Agent Tyler was cross-
examined by Mordago's counsel with regard to the November 5, 1991
meeting:
Q: Do you recall Mr. Mordago saying there is
a Colombian called Tosti T-O-S-T-I who lives
on White Plains Road, the Bronx, New York,
associated with the Cali Cartel?
A: Yes.
Q: Did he also mention an associate of Mr.
Paz named Santiago also known as Poppo?
A: Yes, he did.
Q: Did he state that Poppo moves between one
hundred to 150 kilos of cocaine per week?
A: Yes, he did.
Id. at 47.
23
. Direct examination of Agent Thiel by the government
concerning Thiel's meeting with Mordago on November 5, 1991:
(..continued)
Q: Now what other information did Joaquin
Mordago provide on that date, November 5th,
1991?
A: He mentioned that there was another
associate of Mr. Paz by the name of Mr.
Poppo, who was a drug dealer in Philadelphia.
TT at 70 (Sept. 15, 1992; Morning Session).
Cross-examination of agent Thiel by Gonzalez-Rivera's
counsel concerning the agent's meeting with Mordago on November
5, 1991:
Q: [Mordago] also identified an individual
named Santiago or Poppo who could obtain
between 100 and 150 kilos of cocaine per
week, correct?
A: That is correct.
Q: I heard you testify on direct examination
you were part of this case, right?
A: Yes.
Q: You were monitoring the tapes, right?
A: Yes.
Q: Do you know an individual named Theodore
Santiago?
A: Yes, sir.
Q: He is indicted in this case, right?
A: Yes.
Q: He has a nickname of Poppo, correct?
A: That is correct.
Id. at 79-80.
 Notwithstanding the specificity of agents Tyler's and
Thiel's testimony, Gonzalez asserts that the jury was left with
the impression that Mordago provided the government with
information on him, rather than on Theodore Santiago. In support
of this argument, Gonzalez asserts that a telephone number which
Mordago associated with "Poppo" and provided to agents Tyler and
Thiel was Gonzalez's girlfriend's telephone number.24 In
essence, Gonzalez is asserting that any reference in the agents'
testimony to Theodore Santiago was in reality a reference to
Santiago Gonzalez.
Gonzalez argues that the agents' testimony concerning
Theodore Santiago, much of it solicited during cross-examination
in support of Mordago's authorized informant defense, violated
Gonzalez's right to a fair trial. Gonzalez asserts that not only
was he unable to cross-examine Mordago as to these statements,
but Mordago's defense was antagonistic to Gonzalez's defense, to
the point of being irreconcilable and mutually exclusive. In his
brief, Gonzalez asserts: "At the close of all the evidence, the
jury faced a clear choice of either totally discrediting
Mordago's claim that he had made pretrial incriminating
statements against [Santiago Gonzalez], or rejecting out-of-hand
24
. Both Tyler and Thiel testified that Mordago had given them a
telephone number for Theodore Santiago. During his defense,
Gonzalez presented Maria Soto, who testified that Gonzalez lived
with her in Philadelphia. Soto testified that the telephone
number, previously identified as Theodore Santiago's, was her
number.
[Santiago Gonzalez's] defense that he was completely innocent of
any involvement in Paz's drug dealing."
Gonzalez goes on to assert that this prejudice was
compounded by Mordago's closing argument, in which Mordago's
counsel, as part of his client's authorized informant defense,
pinpointed Gonzalez as one of the traffickers that Mordago
revealed to the government. Gonzalez's counsel did not object to
this summation. Rather, he now asserts that counsel's
"communication to the jury of Mordago's incriminating statements
against [Gonzalez] was the same as the admission of a co-
defendant's confession implicating another defendant in a joint
trial when the codefendant does not take the stand."
As an initial matter, Bruton v. United States, 391 U.S.
123 (1968) does not apply when an attorney for a co-defendant
implicates the defendant during closing argument. Sandini, 888
F.2d at 311. "We have . . . never held that Bruton applies when
the attorney for a codefendant implicates a defendant during a
closing argument and we perceive of no reason to do so because
the arguments of counsel are simply not evidence. Bruton is
directed toward preserving a defendant's right to cross-
examination, and thus has nothing to do with arguments of counsel
based on their interpretation of the evidence." Id. at 310-11.
Gonzalez attempts to distinguish Sandini based on the
proposition that there was evidence to support counsel's
assertions that Mordago had identified Gonzalez as Paz's Miami
drug supplier. In essence, Gonzalez is asserting that the
underlying evidence violated Bruton. Thus, we examine the use of
the FBI 302 reports to see if a Bruton violation occurred.
We reject Gonzalez's argument on two grounds. First,
the FBI 302 reports were never published to the jury.25 Second,
Gonzalez reads too much into the testimony of agents Tyler and
Thiel. As previously discussed, both agents specifically
testified that Mordago provided information on Theodore Santiago
(a/k/a "Poppo"), not Gonzalez. If the agents' testimony of what
Mordago told them expressly inculpated Gonzalez, clearly there
would be a Bruton problem and a stronger case for severance.
However, the evidence highlighted by Gonzalez provides little
support for reversing his conviction.
In addition, we do not believe that Gonzalez was
entitled to a mistrial and severance based on our reading of
Zafiro. Zafiro confirms that defendants have a heavy burden in
gaining severance. We find that Gonzalez has failed to meet this
burden and that the defendant was not entitled to a severance.
Moreover, in regard to the government informant
defense, Mordago's defense was not mutually exclusive of
Gonzalez's defense that he was not aware of Paz's drug dealing
25
. In fact, the district court was particularly careful in
preventing a Bruton problem. After summation, Mordago's counsel
sought to have the FBI 302 reports published to the jury. The
court denied the motion, citing the potential prejudice to
Gonzalez. Thus, not only did the district court not commit plain
error as its relates to Gonzalez's right to a fair trial, it
sought to avoid any undue prejudice to the defendant.
activities. Gonzalez testified that he was not involved in Paz's
drug trafficking and that he did not know, when he met with agent
Tapia, why MRK owed Paz $97,500. The jury could have believed
that Mordago was a government informant as his testimony related
to Theodore Santiago and other traffickers, while also finding
that Gonzalez was not involved in any drug activity. Thus, it
would have been possible to acquit both Mordago and Gonzalez.
Based on our review of the evidence at trial, we do not believe
the defendants presented mutually exclusive defenses.
Moreover, the government presented a substantial amount
of evidence in support of Gonzalez's role in trafficking cocaine.
Gonzalez's conviction on Count Fourteen for distribution of a
controlled substance was based on the September 13, 1991, sale of
one kilogram of cocaine for $21,000 to agent Gonzalez, working
undercover at MRK. This transaction was captured on videotape
and the tape was admitted into evidence. Gonzalez's conviction
on Count Sixteen for distribution of a controlled substance was
based on the October 11, 1993, sale of five kilograms of cocaine
to agent Gonzalez. Paz and agent Gonzalez agreed that agent
Gonzalez would pay $19,500 per kilogram, for a total sale of
$97,500. Our review of the evidence indicates that the
government demonstrated Santiago Gonzalez's active involvement in
this cocaine transaction.
In sum, we find that the district court did not commit
error in deciding not to sever Gonzalez's trial from Mordago's.
We further find that there was substantial evidence, exclusive of
the October tapes to support Gonzalez's conviction. We will,
therefore, uphold Gonzalez's convictions on Counts One, Fourteen,
and Sixteen.
iii. Fine and Restitution
In addition to his term of imprisonment and supervised
release, the district court imposed a $5,000 fine on Gonzalez and
ordered him to pay $21,000 in restitution. Gonzalez appeals both
the fine and restitution, asserting that the district court erred
in failing to make express findings as to his ability to pay.
See United States v. Demes, 941 F.2d 220, 223 (3d Cir.), cert.
denied, 112 S. Ct. 399 (1991). The government concedes that no
such express findings were made. We will therefore remand the
issue of the fine to the district court for it to make express
findings regarding Gonzalez's ability to pay a fine.
With regard to the restitution ordered by the district
court, the government contends that calling this sanction
"restitution" was simply a clerical error which can be corrected
without remand. The jury returned a special verdict that
Gonzalez should forfeit $20,000 based on Count Twenty-Five. The
government claims that the district court mistakenly ordered
Gonzalez to pay $21,000 as restitution instead of directing the
defendant to comply with the jury's special verdict on
forfeiture. The government further asserts that under Fed. R.
Crim. Pro. 36, a clerical error in a judgment may be corrected by
the district court at any time. We conclude, however, that the
scope of the error is not that clear. We will, therefore, remand
this issue to the district court to clarify whether or not it
erred in denominating forfeiture as restitution and whether it
misstated the amount of forfeiture if that is what was intended.
If the district court intended to impose payment of restitution,
it should also on remand make express findings as to such
restitution.
D. Melba Quintero
Melba Quintero was convicted of three telephone counts
which the government concedes must be reversed (Counts Seventeen,
Nineteen, and Twenty). We will do so. Quintero's remaining
convictions are for conspiracy to distribute in excess of five
kilograms of cocaine (Count One), distribution of cocaine (Count
Twenty-Two), and possession with intent to distribute cocaine
(Count Twenty-Three). Quintero asserts that the admission of the
October tapes was prejudicial error as to these three
convictions. The government maintains that the admission of the
October tapes was harmless error based on the substantial
evidence, excluding the October calls, against Quintero. This
evidence includes testimony by Paz and FBI agent Joaquin Garcia
("Garcia"), a videotaped meeting and two telephone calls between
Quintero and Garcia, and items seized from Quintero at the time
of her arrest.26
26
. These items included the address of Cruz, and the home, work
and beeper numbers for Gonzalez-Rivera.
Paz testified that he received two and one-half
kilograms of cocaine on consignment from Quintero and codefendant
Elsa Cruz during a trip to New York shortly before his arrest.
On October 31, 1991, Paz sold two of these kilograms to agent
Gonzalez at MRK. This was the basis for Quintero's conviction on
Count Twenty-Two for aiding and abetting the distribution of
cocaine. Under the plan developed by the FBI for Paz's arrest,
agent Gonzalez agreed to accept two of the kilograms of cocaine
that Paz brought that day but to refuse the remainder. On
leaving MRK, Paz was arrested with the remaining cocaine in his
possession. This was the basis for Quintero's conviction on
Count Twenty-Three for aiding and abetting Paz in the possession
with intent to distribute cocaine. We find that there was
adequate evidence, without the tapes, to support these
convictions.
Turning to the conspiracy conviction, soon after Paz's
arrest, the FBI undertook a further investigation of Quintero.
An undercover operation was initiated in which Quintero was
provided with agent Garcia's beeper number and told that a debt
Garcia owed Paz would be paid to her instead. Approximately four
weeks after Paz's arrest, Quintero contacted Garcia. Garcia
testified that during their initial conversation he advised
Quintero that he had some money that he owed Paz that he would
give to her instead. After several more telephone conversations,
Garcia and Quintero agreed to meet at a hotel in Queens, New
York, on December 10, 1991. Garcia brought with him another
undercover agent. Quintero was accompanied by Elsa Cruz.
A videotape of the December 10 meeting was introduced
into evidence. At the start of the meeting Quintero introduced
Cruz as "her partner." Garcia asked Quintero and Cruz how much
money Paz owed them. They responded that they had provided Paz
with more than two kilograms of cocaine.27 Garcia testified that
27
. The following conversation was recorded on December 10,
1991.
Agent Garcia ("AG"): And how much money does
Cristobal owe you two?
Elsa Cruz ("EC"): Two kilos and two thousand
twenty-seven.
AG: Two kilos and two thousand twenty-seven?
Melba Quintero ("MQ"): No. . . . Two hundred
twenty-seven.
AG: How is that?
EC: Yes. It's two hundred. Two hundred. . .
It was two kilos and two hundred and twenty-
seven.
AG: Two hundred twenty-seven thousand dollars?
EC: Nooo!
MQ: No. . . Two kilos.
EC: It was two kilos and two hundred and
twenty-seven grams.
AG: Ah . . . grams.
TT at 59-60 (Sept. 14, 1992; Morning Session).
he understood from this conversation that Paz owed them money for
this amount of cocaine.28
In her defense, Quintero admitted that this
conversation was about cocaine. She asserted, however, that this
was a ploy that she and Elsa Cruz created in order to get back
money which Quintero had given Paz for the purchase of a car.
Quintero testified that any reference to cocaine during this
meeting was an act in an effort to get Garcia to give them the
money that he purportedly owed Paz. During this meeting, Garcia
gave Quintero and Cruz $2,000 as a partial payment.29
Quintero seeks to discount the value of the
videotape, asserting that it "cannot stand on [its] own once Paz'
testimony is discounted." Our review of the transcript, however,
convinces us that it can stand very well on its own without
support from the October tapes. It was up to the jury to judge
Quintero's credibility. We do not find it likely, in view of the
other substantial evidence, that the jury's assessment of
credibility was altered by the improper admission of the October
tapes. Not only did Paz testify to receiving two and one-half
28
. There were references throughout the forty minute meeting to
cocaine and drug transactions. At one point, Quintero and Cruz
asked Garcia if he could get a copy of the police report of Paz's
arrest from Paz's girlfriend. Garcia testified that it is common
for drug traffickers to show such records to their suppliers in
an effort to be released from any debt owed on the cocaine
seized.
29
. This $2,000 was the basis for Quintero's conviction in Count
Twenty-Eight for criminal forfeiture.
kilograms of cocaine from Quintero, the jury was presented with a
videotaped conversation in which Quintero specifies to agent
Garcia the amount of cocaine that she delivered to Paz. The jury
had the opportunity to hear and evaluate Quintero's explanation
for her statements on the videotape. They choose not to believe
her.
We find that the admission of the October tapes
constituted harmless error and that there is sufficient evidence
to affirm Quintero's convictions on Counts One, Twenty-Two, and
Twenty-Three.
E. Joaquin Mordago
Joaquin Mordago was convicted of one telephone count
which the government concedes must be reversed (Count Eighteen).
Again, we will do so. Mordago's remaining conviction is for
conspiracy to distribute in excess of five kilograms of cocaine
(Count One). Mordago asserts a number of specific reasons why
the admission of the October tapes constituted prejudicial error
as to Count One. The government contends, on the other hand,
that the admission of the October tapes was harmless error based
on the other evidence against Mordago. This evidence included
testimony by Paz, a videotape in which Paz was recorded talking
with someone, purported to be Mordago, about the quality of
certain cocaine, and items seized from Mordago at the time of his
arrest.30
30
. These items included the beeper numbers for Paz and
Gonzalez-Rivera, and the telephone number of Gonzalez.
Mordago's role in the conspiracy involved his drying
two and one half kilograms of "wet" cocaine which Paz received
from Quintero and Cruz. Paz testified that Mordago helped him
dry the cocaine by mixing it with acetone. According to Paz,
Mordago had attempted to sell the three kilograms of cocaine but
returned them to Paz when Paz believed that he had a willing
buyer in agent Gonzalez at MRK. Paz stated that during the
October 31 transaction at MRK, he called Mordago to complain
about the quality of the cocaine. Paz's part of this
conversation was recorded on the videotape, which was played for
the jury.31 There is no evidence, independent of Paz's
31
. The following is testimony by Paz on direct examination by
the government.
Q: Now, during this part of the videotape,
where are you seated?
A: Behind a desk.
Q: What were you doing?
A: I was making a telephone call.
Q: Who were you calling?
A: Joaquin Mordago.
Q: What were you saying to Joaquin Mordago?
A: That I was having problems with that kilo,
that what he had done was some shit.
Q: Now looking at the top of page six of the
transcript book, you stated towards the top
of that page the following: There is one
that you made for me there, that doesn't even
have a shape. It doesn't even have shape.
testimony, of the identity of the person to whom he was talking
during this conversation.
In addition to Counts One and Eighteen, Mordago was
indicted on Count Sixteen for distribution of cocaine. The jury
acquitted him on this count. Count Sixteen was based on the
October 11, 1993, sale of five kilograms of cocaine to agent
Gonzalez by Paz and Santiago Gonzalez. The government's evidence
tying Mordago to the distribution of this cocaine was testimony
by an FBI agent who on November 8, 1991, arrested Mordago in the
Comfort Inn hotel room registered to Gonzalez, twenty minutes
after Gonzalez was arrested in the parking lot.
(..continued)
No, but we have to do that again. Now, what
were you referring to in that part of the
conversation that it didn't have shape?
A: The kilo that [agent Gonzalez] did not
want.
Q: When you stated "but we have to do that
again man," what had to be done again?
A: That kilo that didn't have shape.
Q: What was going to be done to give that kilo shape?
A: Again, to take it, melt it, put it in a
vase, I don't know what the man was going to
do.
Q: That man was going to do, who were you
referring to?
A: Joaquin Mordago.
TT at 42-43 (Sept. 3, 1992; Morning Session).
The defense asserted that Mordago was present in
Gonzalez's hotel room as part of his efforts to provide
information to the government. The government presented several
law enforcement officials who testified that Mordago had not been
authorized to act in such a manner. We can only hypothesize why
the jury acquitted Mordago on Count Sixteen. Mordago asserts
that the jury "apparently accepted" his authorized informant
defense as it related to Count Sixteen. Equally plausible,
however, is that the jury believed that the evidence against
Mordago, arrested while waiting in Gonzalez's hotel room, was
insufficient to find that he participated in the distribution of
the five kilograms of cocaine to MRK. Given the fact the
government presented no evidence that Mordago supplied,
delivered, or sought direct payment for the five kilograms which
were given to agent Gonzalez on consignment, it is quite possible
that the jury did not believe the government had proved beyond a
reasonable doubt Mordago's participation in the distribution.
The jury was presented with evidence of four taped
phone conversations between Paz and Mordago during the month of
October, one on October 12, two on October 17, and one on October
23. Agent Clouse testified that during the October 12 telephone
conversation, Mordago offered to supply Paz with a device that
Paz could use to detect wire taps and scramble telephone
conversations to avoid being intercepted.
Paz testified about the contents of all four October
telephone conversations. In each instance, the conversation was
played for the jury, followed by Paz's testimony. During the
October 12 telephone conversation, Mordago told Paz that "I'm in
a pretty bad situation and I want to start doing something, do
you understand it?" Paz testified that he interpreted this to
mean that Mordago wanted to become involved in cocaine
trafficking. Paz also testified, based on this conversation,
that Mordago had an interest in meeting with Gonzalez-Rivera.
During the October 23 telephone conversation, Mordago asked Paz
"why don't you talk to Papo so that he get me" and later told Paz
that "I want to start working brother." Paz testified that he
understood Mordago to mean that he wanted Paz to find him some
cocaine so that he could start selling it.32
Without these taped recordings, the only evidence
presented by the government of Mordago's role in the conspiracy
was Paz's testimony and the facts surrounding Mordago's arrest.
32
. This conversation also contained a statement by Mordago that
"Alfredo is going to bring to me . . . to fix the blender . . .
you brought me yesterday." Paz testified this was a reference to
the drying and mixing of the two and one-half kilograms of
cocaine received from Quintero and Elsa Cruz. On cross-
examination, however, Paz testified that the reference may have
been to bullets for a gun that he claimed to have given Mordago.
Paz's testimony on this aspect of the recorded conversation is
ambiguous. Nevertheless, the government sought to prove that
Mordago assisted Paz by drying the cocaine received from Quintero
and Elsa Cruz. The government introduced into evidence a
telephone conversation between Paz and Gonzalez recorded on
October 28 in which Paz told Gonzalez that "Joaquin" had dried
some cocaine for him. This conversation was also inadmissible.
Mordago asserts that Paz "had an overwhelming motive and bias
against Mordago" based on the fact that Mordago had supplied
information to the government on Paz's drug trafficking activity
three weeks prior to Paz's arrest. On October 10, 1991, Mordago
informed AUSA Cohan and agent Tyler during a telephone
conversation that Paz was distributing between twenty-eight and
thirty kilograms of cocaine per week.
AUSA Cohan and agent Tyler talked with Mordago by
telephone on October 10, 1991, one week after his release from
prison. AUSA Cohan testified that she recalled that Mordago told
them that he had met Paz at a restaurant called El Kibuk and
learned that Paz was distributing between twenty-eight and thirty
kilograms of cocaine per week. Agent Tyler testified that during
this October 10 telephone conversation, Mordago "advised me that
he had met, had been to El Kibuk, and had learned that a guy
named Cristobal Paz was selling 28 to 30 kilos of cocaine from a
supplier in Miami." TT at 15 (Sept. 15, 1992; Morning Session).
Mordago's theory, if credible, gives Paz a motive to
implicate Mordago in the conspiracy in retaliation for Mordago's
role in providing the government with information concerning
Paz's drug related activity. Moreover, the only substantive
evidence establishing Mordago's role in the conspiracy outside of
the October tapes is Paz's testimony. Unlike the other
defendants recorded on the October tapes, for whom there was
independent evidence beyond Paz's testimony to prove their active
role in the conspiracy, no such independent admissible evidence
was introduced by the government with regard to Mordago.
The government responds that Mordago's arrest on
November 8 in Gonzalez's Comfort Inn hotel room was evidence of
his role in the conspiracy. However, Mordago's presence in the
hotel room did not seem that culpable to the jury. They
acquitted Mordago on Count Sixteen. The only other evidence
brought to our attention of Mordago's involvement in the
conspiracy was his possession of Gonzalez-Rivera's beeper number
at the time of his arrest.
In a trial without the October tapes, Paz's testimony,
with appropriate cross-examination, might be enough to support a
finding that Mordago participated in the conspiracy. Here,
however, the admission of the October tapes clearly disadvantaged
Mordago to a greater degree that it did his co-defendants. Based
on this analysis, we do not have a sure conviction that the
admission of the October tapes did not prejudice him.
We do not reach this conclusion on the basis that
Mordago should have been acquitted based on his authorized
informant defense.33 Rather, we only find that the admission of
33
. In crediting the information Mordago supplied to the
government on October 10, we in no way comment on the sufficiency
of Mordago's authorized informant defense. That will be for a
new jury to decide if the government seeks to retry the
defendant. It is entirely possible that the jury believed, as
the government argued, that Mordago was not authorized to engage
in the illegal activity that the government sought to prove he
engaged in. We only note the information that Mordago provided
to the government on October 10 as it impacts on the credibility
of Paz's testimony.
the October tapes constituted prejudicial error to defendant
Mordago. We will therefore reverse Mordago's conviction on Count
One.
V. Jose Cruz
Cruz is not recorded on any telephone call offered into
evidence by the government. Rather, he challenges the district
court's refusal to suppress evidence of fifteen kilograms of
cocaine found in his car during a search by the New Jersey State
police. Cruz asserts that the search of a suitcase in the trunk
of the car he was driving constituted an illegal search and
seizure, which should have resulted in the evidence obtained
being suppressed. A review of the facts culminating the search
indicates that no constitutional violation occurred and the
district court did not err in admitting the evidence obtained.
We therefore will affirm Cruz's conviction on Counts One and
Five.
VI.
For the reasons stated above, we will affirm Gonzalez-
Rivera's convictions on Counts One, Two, Five, Six, and Eight,
Rodriguez's convictions on Count One and Thirteen, Gonzalez's
convictions on Counts One, Fourteen and Sixteen, Quintero's
convictions on Counts One, Twenty-Two, and Twenty-Three, and
Cruz's conviction on Counts One and Five. We will reverse
Gonzalez's convictions on Count Twenty-One, and Quintero's
convictions on Counts Seventeen, Nineteen, and Twenty. We will
reverse Mordago's convictions on Counts One and Eighteen and
remand Count One against Mordago to the district court for a new
trial. We will reverse and remand for further proceedings the
fine and restitution imposed on Gonzalez.
Defendants Gonzalez and Quintero will have to be
resentenced because of the reversal of certain of their
convictions. The government concedes that the suppression of the
October tapes will also require that defendants Gonzalez-Rivera,
Rodriguez, and Cruz be resentenced because in calculating their
original sentences the district judge may have attached
significance to one or more of the October tapes.34 Therefore,
we will remand for resentencing defendants Gonzalez, Quintero,
Gonzalez-Rivera, Rodriguez and Cruz.
34
. The government mades this concession in its letter of March
31, 1994:
Re-sentencing for all six defendants would be
necessary because within a given guideline
range, the district court has wide
discretion. Since the judge, in his
discretion, could have attached considerable
significance to one or more of the October
tapes, re-sentencing would be appropriate to
allow the judge to re-weigh all of the
various factors which ultimately contribute
to a particular sentence.