U.S. v. Gaviria

• Decision Date: 27 June 1997
• Docket Number: 96-3018,95-3125,95-3151,Nos. 95-3124,s. 95-3124
• Citation: 116 F.3d 1498,325 U.S. App. D.C. 322
• Parties: , 47 Fed. R. Evid. Serv. 457 UNITED STATES of America, Appellee, v. Humberto Antonio GAVIRIA, a/k/a Chicky, a/k/a Alberto Bustamonte, a/k/a Antonio Gaviria Alvarez, a/k/a Pablo Vargas, a/k/a Radamas Perez, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1498

116 F.3d 1498

325 U.S.App.D.C. 322, 47 Fed. R. Evid. Serv. 457

UNITED STATES of America, Appellee, v. Humberto Antonio GAVIRIA, a/k/a Chicky, a/k/a Alberto Bustamonte, a/k/a Antonio Gaviria Alvarez, a/k/a Pablo Vargas, a/k/a Radamas Perez, Appellant.

Nos. 95-3124, 95-3125, 95-3151, 96-3018.

United States Court of Appeals District of Columbia Circuit.

Argued April 17, 1997.

Decided June 27, 1997.

Appeals from the United States District Court for the District of Columbia (No. 93cr00418-01)(No. 93cr00418-03)(No. 93cr00418-04)(No. 93cr00418-07).

Stephen C. Leckar, Joseph Virgilio, Neal Goldfarb, Washington, DC, and Howard F. Bramson, E. Brunswick, NJ, all appointed by the Court, argued the causes and filed the joint and individual briefs for appellants. Zachary Williams, Chicago, IL, appearing pro se, also filed a brief.

William D. Weinreb, Assistant United States Attorney, Washington, DC, argued the cause for appellee, with whom Eric H. Holder, Jr., United States Attorney, Washington, DC, John R. Fisher, Mary-Patrice Brown, and Jeanne M. Hauch, Assistant United States Attorneys, Washington, DC, were on the brief. Barbara A. Grewe and Elizabeth Trosman, Assistant United States Attorneys, Washington, DC, entered appearances.

Before: WALD, GINSBURG and TATEL, Circuit Judges.

Opinion for the Court filed Per Curiam.

PER CURIAM: ¹

In these consolidated appeals, the appellants are four individuals convicted of various drug conspiracy and distribution offenses arising out of an undercover investigation of a multikilogram drug-dealing operation in Miami and the District of Columbia. Appellants challenge their convictions and sentences, raising numerous claims, one jointly and the rest individually. In Part I of this opinion, we summarize the basic facts of the case. In Part II, we address the challenge to the jury instruction on the conspiracy charge, an argument raised jointly by all four appellants. In Part III, we address the challenges raised individually by appellant Humberto Gaviria, in Part IV, those raised by appellant Regulo Zambrano, in Part V by appellant Zachary Williams, and in Part VI, by appellant Jose Naranjo. We affirm on all issues and uphold all of the appellants' convictions, except that we remand appellant Gaviria's claim of ineffective assistance of counsel to the district court for an evidentiary hearing, and we vacate the forfeiture portion of appellant Williams's sentence.

I. BACKGROUND

The convictions at issue arose out of a joint Federal Bureau of Investigations (FBI)-Metropolitan Police Department (MPD) investigation of appellant Jose Naranjo, a federal prison inmate who, with the help of his wife Gloria Naranjo and various other individuals, continued his cocaine business while he was incarcerated at the Federal Correctional Institute (FCI) in Petersburg, Virginia. ² During the course of his prison term, Naranjo was introduced to David Sanders, himself an experienced drug dealer who was visiting a friend at FCI. At that initial meeting, Naranjo introduced Sanders to Naranjo's wife, Gloria, who was also in the FCI visiting room at the time. Subsequently, Naranjo arranged for his wife to supply Sanders with multi-kilogram quantities of cocaine to be resold in the District of Columbia. However, this arrangement failed when Gloria Naranjo was arrested and imprisoned on a federal drug conspiracy charge during the summer of 1992. In order to maintain his cocaine business after that, Naranjo had to find a new drug connection on the outside.

Consequently, during the fall of 1992, Naranjo put in several telephone calls from FCI to Humberto Gaviria, a convicted drug dealer residing in Colombia, ³ to find out whether Gaviria would be willing to supply drugs for resale in the United States. In these phone calls, which like many others in the case were conducted in code, ⁴ Naranjo asked Gaviria for details about the price, availability, and quality of cocaine that Gaviria would be able to acquire in Colombia. Gaviria informed Naranjo in Spanish that "one of those cars here cost[s] around $800.00 pesos," that "there is a whole, whole, whole bunch for everyone," and that "it is the best." GovEx 102292 at 12-13. ⁵ Per Gaviria's request, Naranjo confirmed this conversation with a letter written in Spanish code that, among other things, provided a New Jersey telephone number for "El Perrito," Naranjo's "connection" for the drugs. In a November 20, 1992 telephone call, Gaviria told Naranjo that he had found a drug supplier in Colombia ("Pachito"). Subsequently, Naranjo arranged for Gaviria to come to the United States and directed Sanders to help Gaviria in the drug-selling endeavor. ⁶ However, unbeknownst to Naranjo or Gaviria, Sanders was arrested on an unrelated charge sometime between the original phone calls between Naranjo and Gaviria and the time of Gaviria's arrival in the United States. Following his arrest, Sanders agreed to cooperate with the FBI in the investigation of Naranjo.

After Gaviria's illegal immigration, the Naranjo/Gaviria conspiracy planned four shipments of drugs that figured in the FBI/MPD investigation. Arrangements for the first shipment, which was "lost" before arrival in this country, occurred three weeks after Gaviria's arrival. Sanders gave Gaviria $17,500 as a downpayment on five kilograms of cocaine, but after the money was sent, Naranjo and Gaviria spent months unsuccessfully tracking the shipment through South and Central America. The drugs had not entered the United States by the time the two men were arrested in November 1993.

The second and third shipments of drugs arose out of a surprise phone call received by Gaviria on October 27, 1993, from appellant Regulo Zambrano in Miami, where Zambrano, a Colombia native and old acquaintance of Gaviria's, had been residing illegally since March 1993. ⁷ One month prior to this phone call, Gaviria was introduced to Detective Jesus Gonzales, an undercover officer who called himself "Carlos." ⁸ Upon receiving Zambrano's phone call, Gaviria told Sanders and Gonzales that Zambrano could provide them with drugs, and Gaviria introduced them to him over the phone. Both Gaviria and Naranjo vouched for Zambrano's trustworthiness and ability to get drugs. After several more phone calls between Gaviria and Zambrano, Naranjo instructed Sanders to get Gaviria a plane ticket to Miami, and Sanders did so. Gaviria flew to Miami on November 2, 1993, spending several nights at Zambrano's house. In a three-way phone conversation in which Gonzales, Gaviria, Zambrano, Naranjo, and Sanders participated, the group talked in code about the possibility of arranging a drug deal.

The next day, Friday, November 5, 1993, after receiving a message from a man calling himself "the Panamanian" via Martha Gaviria, Humberto Gaviria and Zambrano went to a Burger King in Coral Gables, Florida, to receive a shipment of drugs from the Panamanian. Because Zambrano had to leave the Burger King meeting early, before the Panamanian's arrival, in order to go to work, Gaviria requested that his sister Martha pick him up in her car. After she appeared at the Burger King, Gaviria requested that she wait a little while to see if the Panamanian would arrive. When the Panamaniam did arrive, he used Martha's car to pick up an eight-kilogram package of drugs, which Gaviria then hid in Martha's house. Two days later, on Sunday, November 7, 1993, Gonzales and Sanders flew down to Miami. In a rented hotel room that served as a meeting place, Gaviria and Martha gave them the eight kilograms of cocaine in exchange for $8,000 in transportation costs. Upon leaving the hotel where that exchange took place, Gaviria and Martha met Zambrano at a restaurant in another location and gave him a thick stack of cash. Gaviria asked Zambrano to meet with Gonzales and Sanders to "pressure them so they would pay him part of the money" for the drugs. ⁹

Further negotiations followed--and Gonzales and Gaviria ultimately agreed on November 9, 1993, that Gonzales would fly to Miami and pick up the third cocaine shipment (seven kilograms) from Zambrano or Martha, and that Sanders would at the same time deliver the money still owed on the first eight kilogram shipment to Gaviria (in D.C.). In accordance with this plan, on Wednesday, November 10, 1993, Zambrano first met Gonzales at a hotel. Zambrano then drove to Martha Gaviria's house in Gonzales's car, spent approximately ten minutes inside, drove back to the hotel to meet Gonzales, indicated to Gonzales that the drugs were hidden behind the driver's seat, and accepted $7,000 in transportation costs from Gonzales in exchange for the seven kilograms. At that point, uniformed officers arrested Zambrano; around the same time, back in Washington, D.C., Gaviria was arrested, and the $148,000 payment he had received from Sanders, the balance of money still owed on the first shipment of cocaine, was found on his person.

The fourth and final shipment of cocaine (five kilograms) occurred on November 16, 1993, after months of arrangements and planning, involving several additional participants. The events leading to the sale began in July 1993, when appellant Zachary Williams became Naranjo's FCI cellmate. ¹⁰ On October 15, 1993, Williams contacted Jocelyn and David Johnson from FCI and told them he had made some friends who could help obtain drugs. On October 26, 1993, Gaviria told Gonzales that Naranjo had directed Gaviria to send a friend's [Williams's] money--which Johnson had obtained by selling off some of Williams's jewelry--to Colombia for another shipment of cocaine. On October 29, 1993, Naranjo gave Gaviria two telephone numbers to contact David Johnson. When Gaviria and Gonzales flew to Miami a few days afterwards, Gaviria called Johnson from the airport, and Gonzales told Johnson that he and Gaviria were preparing to purchase some cocaine. Johnson said that he wanted to set up a meeting with Gonzales and Gaviria when ...