U.S. v. Arboleda

Decision Date10 June 1994
Docket NumberNos. 276,D,277 and 278,s. 276
PartiesUNITED STATES of America, Appellee, v. Durvan ARBOLEDA, Defendant, John Wenzel and Juan Gil as known as Pedro, as known as Peter and Hector DeJesus Areanas-Posada, Defendants-Appellants. ockets 93-1234, 93-1237 and 93-1239.
CourtU.S. Court of Appeals — Second Circuit

Fern H. Schwaber, Schwaber & Kafer, New York City, for defendant-appellant Hector DeJesus Areanas-Posada.

Lawrence A. Barocas, Barocas & Schmidt, P.C., New York City, on the brief of counsel for defendant-appellant Juan Gil.

Douglas Eaton, New York City (also on the above brief of counsel) for defendant-appellant John Wenzel.

Mark J. Stein, Asst. U.S. Atty., S.D.N.Y. (Mary Jo White, U.S. Atty., S.D.N.Y., Robert Khuzami, John W. Auchincloss II, Asst. U.S. Attys., S.D.N.Y., New York City, of counsel), for appellee U.S.

Before: NEWMAN, Chief Judge, CARDAMONE and GOODWIN * Circuit Judges.

CARDAMONE, Circuit Judge:

Defendants John Wenzel, Juan Gil and Hector Areanas-Posada (defendants or appellants), were convicted of conspiracy to launder money and of laundering money representing the proceeds of unlawful narcotics trafficking in violation of 18 U.S.C. Secs. 371 and 1956, respectively, and also were convicted of engaging in transactions in money derived from the proceeds of unlawful narcotics trafficking in violation of 18 U.S.C. Sec. 1957, following a jury trial in the Southern District of New York (Griesa, C.J.). During the jury's deliberations it requested that a portion of the prosecutor's rebuttal summation be read back. The trial judge granted this request, but refused a government request that it also instruct the jury that the prosecutor's rebuttal was not evidence. Shortly after the read-back, the jury returned the guilty verdicts against all three defendants.

This appeal from these judgments of conviction asks us to review the trial court's decision granting the jury's request for the read-back of the rebuttal summation which the jury had already heard earlier that same morning. Such request we think reflects at least some confusion in the jurors' minds as to the role a summation serves, and at least suggests that the jury might have believed the prosecutor's argument could substitute for the jury's recollection of the facts. It is well known that something repeated is more likely to be remembered than something which is not. The law of course permits the prosecution, because of the burden of proof imposed on it, to have the last word. But last word does not mean the last word repeated.

BACKGROUND

The background of this case need be reviewed only briefly. It revolves around the relationship between Duvan Arboleda and Barry Slomovits. Arboleda was a major Slomovits exchanged gold for cash he received from Arboleda at prices significantly above the market price for gold. Although no documentation was kept of these sales, Slomovits was thereby able to account in part for the huge amount of cash he took in. Through the use of wire transfers and checks to Swiss and South American banks, he was able to launder the enormous sums of cash Arboleda delivered to him. More sophisticated transactions to launder money were designed and arranged by Slomovits. These involved other gold merchants and facilitated Arboleda's receiving cash or checks instead of gold.

launderer of proceeds from narcotics trafficking, and was named as a defendant in the same indictment as appellants, but has fled to Columbia. For close to nine years, from 1983 to November 1991, he delivered large amounts of cash to Slomovits, a Manhattan gold merchant, who maintained an entire floor in a building located at 71 East 47th Street between Fifth and Sixth Avenues in New York City. During this nine-year period Slomovits was engaged in money laundering, handling nearly $50 million a year, on which he earned a commission of up to four or five percent.

Appellants were charged with being three of the many couriers of Arboleda's cash--and in the case of Gil, checks as well--as all were employed by Arboleda. They were arrested on November 25, 1991 along with Slomovits and many others. On May 8, 1992 Slomovits pled guilty to a one-count superseding information charging him with money laundering in violation of 18 U.S.C. Sec. 1956, and entered into a cooperation agreement with the government. He ended up as the prosecution's principal witness at defendants' trial. It was his testimony and that of undercover agents that implicated defendants in the money laundering scheme. In addition, the government admitted into evidence two photographs--Exhibits 65 and 66--allegedly showing defendant Areanas carrying boxes containing either gold or cash. Gil and Wenzel took the stand in their own defense and admitted to making deliveries of cash and gold. Each testified they believed the deliveries were part of an attempt by Arboleda to avoid paying income taxes. Areanas, who is Wenzel's brother-in-law, did not testify.

At the close of the testimony on October 15, 1992, after six days of trial, the prosecutor and defense counsel summed up. The next morning, the prosecutor gave his rebuttal summation. The trial judge then charged the jury--including giving the proper instruction regarding the purpose of summation--which retired to begin its deliberations. Several hours later, the jury sent a note to the trial judge stating: "We would like any testimony regarding Hector Areanas on October 8. Also rebuttal summation regarding Hector Areanas." Areanas' counsel immediately objected to the jury again hearing the prosecutor's rebuttal summation. Judge Griesa overruled her objection stating

I see absolutely no reason to deny the jury what they are requesting. They had a right to hear the rebuttal summation in the first place. If they want to hear it repeated, I will allow it without any question.

Obviously sensing the possibility of an impropriety, the prosecutor promptly requested a limiting instruction, asking the jury be instructed "that their own recollection is what they should rely on with respect to the evidence," to which Judge Griesa responded: "There is no need for that. I will simply remind them that this is rebuttal summation. I think that these are intelligent people and they know the difference."

The portion of the prosecutor's rebuttal summation pertaining to Areanas was then read back to the jury. During the read-back--according to an affidavit of defendant Gil's counsel--some of the jurors took notes. Later, the jury sent out a second note regarding the photographs. It asked: "On Exhibits 65 and 66, please name the individuals in the photos as there is no notation on the photos." The trial judge correctly wrote back that: "The only testimony about the photos is Agent Chen's, and it is, the person in the photo is Hector Areanas." Less than an hour later, the jury returned its guilty verdicts.

After the jury was dismissed, two jurors approached Fern Schwaber, Esq., counsel for Areanas. Each handed her a note. Ms. Schwaber stated that another juror said she concurred in the notes. The two notes read as follows Dear Fern Schwaber:

Please note, had you testified against the photographs in Exhibits 65 and 66 that they in fact were not your client, I would have voted for a Not Guilty plea, but unfortunately this was not the case.

I did not believe they were photos of your client.

Juror # 3

* * * * * *

Dear Ms. Schwaber:

You really should be more careful with Exhibits 65 and 66--they didn't at all [look] like your client. I would have pleaded differently if you questioned them.

Juror # 9.

Defense counsel immediately moved for a mistrial. While acknowledging that this was "an unusual incident," Judge Griesa nonetheless denied the motion from the bench and, after a written motion had been submitted by defendants' counsel, he again denied the mistrial motion and also denied a motion for judgment of acquittal or a new trial.

The district court sentenced Wenzel and Gil to 78 months imprisonment followed by two years of supervised release on each count to be served concurrently and a $250 special assessment. Areanas was sentenced to 70 months imprisonment on each count to be served concurrently followed by two years of supervised release and a $150 special assessment. Final judgments against defendants were entered on March 29, 1993. This appeal followed.

DISCUSSION

On appeal, several claims of error have been raised. Since we are directing a new trial, the only question that need be addressed is whether the trial court should have permitted that part of the prosecutor's rebuttal summation concerning Areanas to be read back to the jury.

As an initial matter, as both sides acknowledge, there are no federal cases precisely on point. We have recognized, of course, that whether requested testimony should or should not be read back to a jury during its deliberations is a matter confided to a trial court's broad discretion in the conduct of a trial before it. See United States v. Damsky, 740 F.2d 134, 138 (2d Cir.), cert. denied, 469 U.S. 918, 105 S.Ct. 298, 83 L.Ed.2d 233 (1984); United States v. Pollak, 474 F.2d 828, 832 (2d Cir.1973). While deciding whether or not to grant a jury's request to hear a summation or a portion thereof read back is discretionary, such discretion should be exercised sparingly.

A summation is not evidence. It is simply an attorney's argument to the jury on the circumstances of the case. Its purpose is to explain to the jury how that party views the evidence the jury has seen and heard and to suggest to that body what significance or inference it should attach to or draw from the evidence under the relevant law charged by the trial court. See United States v. Guanti, 421 F.2d 792, 801 (2d Cir.), cert. denied, 400 U.S. 832, 91 S.Ct. 65, 27 L.Ed.2d 64 (1970). Under the Federal Rules of Criminal Procedure, the prosecutor opens the...

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