United States v. Cortina ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 94-5489
GUILLERMO CORTINA,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, District Judge.
(CR-92-36)
Argued: November 3, 1995
Decided: January 3, 1996
Before MICHAEL and MOTZ, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Jill Kramer Traina, Coral Gables, Florida, for Appellant.
Kenneth Davis Bell, First Assistant United States Attorney, Charlotte,
North Carolina, for Appellee. ON BRIEF: Daniel H. Forman, DAN-
IEL H. FORMAN, P.A., Miami, Florida, for Appellant. Mark T. Cal-
loway, United States Attorney, Charlotte, North Carolina, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
A jury convicted Guillermo Cortina of one count of conspiracy to
possess cocaine with intent to distribute it, in violation of 21 U.S.C.
§§ 841(a) and 846. In asking us to reverse his conviction, Cortina
argues (1) that he was unduly prejudiced by Rule 404(b) evidence
admitted against a codefendant, (2) that the government violated a
non-attribution agreement by making improper use of information
gleaned from him during unsuccessful plea negotiations, (3) that the
government violated a sequestration order, (4) that the evidence was
insufficient, and (5) that venue was improper. After considering each
of these arguments, we affirm.
I.
Cortina, Juan Carlos Escobar and Jaime Rodriguez were tried
together. In the middle of the trial Escobar pleaded guilty. Based on
the following evidence, the jury found Cortina guilty of the cocaine
conspiracy charged in the indictment.
Cortina supplied multi-kilogram quantities of cocaine on credit to
Jose Barrena in Miami. Barrena then drove to Charlotte, North Caro-
lina, and delivered the cocaine to Escobar. Escobar, in turn, distrib-
uted the cocaine to Emery Jay Evans for retail sale in North Carolina.
Money from the sales would flow back from Evans to Escobar, then
to Barrena, and finally to Cortina, the main supplier.
Once, Evans complained to Barrena about the quality of eight kilo-
grams in one shipment of Cortina's cocaine. Barrena reported Evans'
complaint to Cortina, who responded (1) that Evans should sell the
bad portion at cheap prices and (2) that he (Cortina) would give Evans
a "good deal" on the next shipment. Evans was arrested by the DEA
before the next shipment, and he agreed to cooperate with the govern-
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ment. Evans, in a taped telephone call, reminded Barrena of the prior
bad shipment and asked him to get 30 kilograms of good cocaine
from Cortina. Barrena agreed, and he was arrested as he delivered the
cocaine to Evans. Barrena also agreed to cooperate with the govern-
ment. Barrena then made several DEA-monitored telephone calls to
Cortina. Among other things, Barrena asked Cortina to come to his
apartment to pick up the money for the 30-kilogram shipment to
Evans. When Cortina arrived with Rodriguez, they were both
arrested.
II.
On appeal Cortina first challenges "other bad act" evidence intro-
duced against his codefendant Rodriguez under Federal Rule of Evi-
dence 404(b). The evidence was about a drug meeting (unrelated to
the conspiracy charged here) between Rodriguez and Angel Oropeza,
a convicted drug dealer who was cooperating with the government.
Cortina rode to the meeting place (a gas station) with Rodriguez, but
Cortina did not participate in the Rodriguez-Oropeza conversation.
Cortina argues that this evidence, although properly admitted against
Rodriguez, had a prejudicial spillover effect mandating reversal of
Cortina's own conviction. This argument fails.
Rodriguez's defense was that he had no connection to the Cortina-
Barrena-Escobar-Evans conspiracy. Thus, Rodriguez testified that
when he accompanied Cortina to Barrena's apartment, he had no idea
that Cortina intended to accept drug money. To counter this defense,
and to show Rodriguez's guilty intent, the government proffered, and
was allowed to introduce, evidence that Rodriguez was present at the
earlier (gas station) drug meeting with Oropeza. This evidence
included Oropeza's testimony about the meeting and DEA agent
Jaime Camacho's testimony that Oropeza, through photographs, had
identified both Rodriguez and Cortina as having been present at the
meeting.
At first the government indicated that this evidence would be
offered against both Rodriguez and Cortina. Cortina's counsel ob-
jected, arguing mainly that Cortina "was merely present," "[n]ever
said anything," and was not involved in "any discussion about drugs."
The prosecutor considered the objection overnight and the next morn-
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ing said that the evidence would not be offered against Cortina. The
prosecutor then asked the district court to grant Cortina's request for
an instruction that the evidence did not apply to him. The following
exchange then took place between the court and Cortina's counsel:
THE COURT: All right. I tell you what I'll do: I'll deliver
the standard 404(b) instruction and then I will indicate that
this 404(b) evidence which is coming in is not to be consid-
ered against your client at all.
[CORTINA'S COUNSEL]: Okay.
THE COURT: It is not evidence against your client.
[COUNSEL]: Which I assume means that this man will
not identify my client or any of that, won't be asked about
that?
THE COURT: Oh, no. Oh, no. Your client will be identi-
fied. But this is not to be considered. This is evidence only
against [Rodriguez].
[COUNSEL]: Okay. But just the identification of him
being there present and that's it?
THE COURT: That's it.
[COUNSEL]: Okay. Got no problem with that.
Before Oropeza and Agent Camacho testified, the court gave the jury
a Rule 404(b) instruction as to Rodriguez and warned the jury that it
could "not consider this evidence [about the gas station meeting] at
all in [its] deliberations concerning Mr. Cortina." Then, without
objection from Cortina, Oropeza testified about his meeting with
Rodriguez and identified Cortina as the person who got out of Rodri-
guez's car during the meeting. Agent Camacho testified after
Oropeza. Camacho said that Oropeza had picked both Rodriguez and
Cortina out of separate photo lineups as being present at the gas sta-
tion meeting. When the government sought to introduce the photo
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spread relating to Cortina, Cortina's counsel objected and was over-
ruled.
The only issue before us is whether the district court abused its dis-
cretion in admitting the photo lineup exhibit relating to Oropeza's
identification of Cortina.
First, the photo lineup was simply cumulative of previous evidence
that had been admitted without objection: Oropeza had already
pointed to Cortina and said he was at the gas station meeting. And,
Agent Camacho had testified about Oropeza's earlier identification of
Cortina in the photo lineup. Only after this testimony did the govern-
ment offer the exhibit with the photo spread that included Cortina.
Although Cortina's counsel objected to its admission, by that time
Cortina's presence at the gas station meeting had been established.
Second, the prior act evidence against Rodriguez cannot be consid-
ered inevitably prejudicial to Cortina if the potential prejudice was
avoided by an appropriate cautionary instruction. See United States v.
Figueroa, 618 F.2d 934, 936 (2d Cir. 1980); United States v. Mounts,
35 F.3d 1208, 1215 (7th Cir. 1994), cert. denied , 115 S. Ct. 1366(1995). Here, the trial court repeatedly warned the jury that the Rule
404(b) evidence was not to be considered against Cortina. Cortina has
not given us any reason to believe that the jury did not follow the trial
court's careful and repeated instructions on this point.
The district court did not abuse its discretion in admitting the photo
lineup as part of the Rule 404(b) evidence.
III.
Cortina next argues that the government violated a non-attribution
agreement by using information obtained from him during plea nego-
tiations. We must reject this argument because the record does not
establish a violation by the government.
The agreement provided that Cortina's
statements . . . may be used against him for impeachment
purposes, only, in any criminal proceeding in which Guil-
5
lermo Cortina testifies under oath, on the record, and in the
presence of counsel . . . unless the said information has
(prior to Mr. Cortina's said statements) already been devel-
oped by law enforcement officers through a source other
than Mr. Cortina.
During plea negotiations Cortina told the government that his
brother, Eduardo, had been killed in Colombia during a drug deal
gone bad. At trial, after another of Cortina's brothers, Digno, testified
that Eduardo died while trying to break up a fight, the prosecutor
sought to impeach Digno through questions implying that Eduardo
died during a drug deal. Cortina's counsel did not object. This cross-
examination would have been objectionable unless the government's
information about Eduardo's death had (as the agreement specified)
"already been developed by law enforcement officers through a
source other than Mr. Cortina." See also Fed. R. Crim. P. 11(e)(6);
Fed. R. Evid. 410(3). However, because defense counsel did not
object to this cross-examination at trial, the government was not chal-
lenged to show that its information about Eduardo's death came from
a source other than Cortina. The alleged violation of the non-
attribution agreement is, therefore, waived unless there is plain error.
Fed. R. Crim. P. 52(b).
To reverse for plain error, there must have been (1) an error, (2)
which was plain, and (3) which affected the defendant's substantial
rights. United States v. Olano, 113 S. Ct. 1770, 1776-77 (1993). After
reviewing the record, we cannot determine the ultimate source of the
government's information about the cause of Eduardo's death. Again,
in the absence of an objection, the government had no reason to try
to prove an independent source. At bottom, we cannot say that the
government did not develop the information before it talked with Cor-
tina. There was no plain error.
IV.
During part of the trial, witnesses Evans and Barrena were placed
in the same courthouse holding cell, in violation of a sequestration
order under Federal Rule of Evidence 615.* The violation occurred
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*Rule 615 permits the court to "order [non-party] witnesses excluded
so that they cannot hear the testimony of other witnesses." Courts also
invoke the rule to prohibit out-of-court witness contact.
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after Evans had testified but before Barrena had done so. Cortina
argues that his conviction must be reversed because the government
violated the sequestration order. We disagree.
Rule 615 aims to prevent witnesses from shaping their testimony
in response to the testimony of other witnesses. See United States v.
Leggett, 326 F.2d 613, 614 (4th Cir.) (per curiam), cert. denied, 377
U.S. 955 (1964). When an in-court violation of a Rule 615 order
occurs, a criminal defendant need not show that the violation preju-
diced him. United States v. Farnham, 791 F.2d 331, 335 (4th Cir.
1986); United States v. Burgess, 691 F.2d 1146, 1157 (4th Cir. 1982).
In that circumstance a conviction may be upheld only if the violation
was harmless beyond a reasonable doubt. Farnham , 791 F.2d at 335.
An out-of-court Rule 615 violation, though, is a different story. So
long as the violation is not flagrant and the improper witness contact
outside the courtroom "had no substantial influence on the jury ver-
dict," the verdict may be upheld. United States v. Harris, 39 F.2d
1262, 1268 (4th Cir. 1994). When an out-of-court violation is brought
to the attention of the trial court, the court's decision to declare a mis-
trial, to exclude witness testimony, to hold responsible parties in con-
tempt, or to let the trial proceed unabated is reviewed for abuse of
discretion. Leggett, 326 F.2d at 614.
Here, when the court learned of the violation of its sequestration
order, it held a hearing to determine what Barrena and Evans said to
each other. Both Barrena and Evans testified. According to both,
Evans told Barrena why he chose to testify on behalf of the govern-
ment. The two also discussed threats the defendants had made against
them. Evans admitted that he discussed one brief aspect of his testi-
mony with Barrena. Specifically, Evans told Barrena he had testified
that although he (Evans) had heard that Barrena was a drug courier,
he had never actually seen Barrena with drugs in his possession.
Evans refused to discuss any other aspect of his testimony with Bar-
rena. Defense counsel then asked that codefendant Escobar, who was
in a nearby cell, be examined, but the court refused to take further tes-
timony on the Rule 615 issue.
The district court found that Barrena's testimony would not be
tainted by his conversation with Evans and, accordingly, denied the
7
defense motion to either declare a mistrial or to bar Barrena from tes-
tifying. The court did, however, permit defense counsel to cross-
examine Barrena about his conversation with Evans in the holding
cell. In addition, the court allowed the defense to argue to the jury that
the sequestration order violation made Barrena's testimony unworthy
of belief. We conclude that the corrective measures taken by the dis-
trict court were adequate to cure what the court found to be a "very
technical and very slight violation" that caused Cortina to suffer "no
particular prejudice." The district court did not abuse its discretion in
denying the motion for a mistrial and in allowing Barrena to testify.
V.
Cortina next claims that there was insufficient evidence to convict
him on a count of conspiring to distribute cocaine in North Carolina.
He argues that the evidence only proves that he gave cocaine to Bar-
rena in Miami on one isolated occasion, with no intent on his (Corti-
na's) part that the drug be distributed elsewhere. Cortina also argues
that because he never left Miami and had no idea cocaine would be
distributed elsewhere, venue was improper in the Western District of
North Carolina.
A.
A jury verdict must be upheld if there is "substantial evidence to
support it." Glasser v. United States, 315 U.S. 60, 80 (1942). The evi-
dence must be viewed in the light most favorable to the government.
Id. A defendant may properly be convicted of conspiracy if the evi-
dence shows that "he join[ed] the conspiracy with an understanding
of the unlawful nature thereof and willfully join[ed] in the plan on one
occasion . . . even though he had not participated before and even
though he played only a minor part." United States v. Roberts, 881
F.2d 95, 101 (4th Cir. 1989).
The evidence established that Cortina was the source of large
amounts of cocaine distributed in North Carolina. Barrena testified
that packages of cocaine he received from Cortina were marked with
the word, "Pepe," and law enforcement officers testified that they
found cocaine packages marked "Pepe" in Lake Lure, North Carolina.
In addition, Cortina's providing cocaine to Barrena on credit allows
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the inference that Cortina knew that Barrena would later sell that
cocaine. Finally, Cortina's statement to Barrena that Evans should sell
the bad batch at reduced rates and that he (Cortina) would give Bar-
rena and Evans a good deal on a future delivery indicates that Cortina
not only knew that Evans was selling cocaine in North Carolina but
that he intended that Evans do so. The evidence was sufficient.
B.
For similar reasons, venue was proper. A crime that is "begun in
one district and completed in another, or committed in more than one
district, may be inquired of and prosecuted in any district in which
such offense was begun, continued, or completed." 18 U.S.C.
§ 3237(a). Once Cortina became a part of the conspiracy, he became
liable for all acts of his co-conspirators undertaken in furtherance of
the conspiracy. Pinkerton v. United States, 328 U.S. 640, 647 (1946).
Ample evidence showed that Cortina was the source of cocaine dis-
tributed in Union and Mecklenburg Counties, North Carolina. Fur-
thermore, the cocaine marked "Pepe" was found in Lake Lure, in
Rutherford County, North Carolina, and was tied directly to Cortina
through Barrena's testimony. Union, Mecklenburg, and Rutherford
Counties are all within the Western District of North Carolina. 28
U.S.C. § 113(c). Venue was proper in that district because the evi-
dence showed that Cortina's co-conspirators, Barrena, Escobar and
Evans, all acted in furtherance of the conspiracy there. See Hyde v.
United States, 225 U.S. 347, 367 (1912) ("the overt acts give jurisdic-
tion for trial").
VI.
Cortina's conviction is affirmed.
AFFIRMED
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