U.S. v. Novation
| Decision Date | 30 October 2001 |
| Docket Number | Nos. 95-444,98-5045,98-4988,s. 95-444 |
| Citation | 271 F.3d 968 |
| Parties | (11th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MERCEDES NOVATON, HUMBERTO RODRIGUEZ, a.k.a. Chino Rodriguez, et al., Defendants-Appellants. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. OSCAR CUNI, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RAMON ROSELL, a.k.a. Papito, OSCAR CUNI, et al., Defendants-Appellants |
| Court | U.S. Court of Appeals — Eleventh Circuit |
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted] Appeals from the United States District Court for the Southern District of Florida
Before ANDERSON, Chief Judge, CARNES and OAKES*, Circuit Judges.
Appellants Francisco Novaton, Oscar Cuni, Jorge Lopez, Reynaldo Rodriguez, Mercedes Novaton, Leopoldo Rodriguez, Felipe Matamoros, Ramon Rosell, and Humberto Rodriguez were convicted of various drug-related crimes that took place in 1993. They appeal, raising numerous issues regarding their convictions and sentences. We reverse the conviction of Ramon Rosell based on his involuntary absence from critical portions of the trial, and we also remand the case involving Reynaldo Rodriguez in order for the district court to attempt to reconstruct some missing exhibits of the record that apparently relate to one of his contentions. Otherwise, we affirm all of the convictions and sentences.1
In September 1993, the Drug Enforcement Administration and the Miami Police Department learned of a cocaine distribution operation in which kilogram-sized bricks of cocaine were being sold from a duplex in Miami. Investigators discovered that Appellant Mercedes Novaton was the record owner of the duplex, and that she lived there with her husband Appellant Francisco Novaton, her mother, and two teenage children.
On October 5, 1993, investigators installed video surveillance equipment across the street from the Novaton residence. Later in October 1993, the agents investigating the Novaton residence obtained authority to intercept wire communications on various telephones used by people who were suspected of participating in the conspiracy to distribute cocaine. During the course of the investigation, the agents monitored over 7,000 telephone calls (approximately 4,000 of which were transcribed). During many of the telephone calls, the co-conspirators used code words when referring to cocaine or to money.
By monitoring the intercepted conversations and by conducting other surveillance, the investigators learned that several co-conspirators were engaged in the distribution of cocaine through various houses in Miami, including the Novaton residence. The agents also learned that two Miami police officers were involved in the cocaine operation. Surveillance showed that Officers Jorge Lopez and Reynaldo Rodriguez, both of whom are appellants in this case, made frequent visits to the residence (sometimes several times per day). The surveillance camera showed that police cars would drive by the residence throughout the day, and would slow down as they passed. The Novaton residence also received calls from a telephone within the Miami Police Department located in a unit adjacent to Jorge Lopez's office.
By monitoring intercepted conversations, the agents were able to obtain information concerning the timing of certain drug transactions, and, on several occasions, the agents seized drugs from purchasers after they left the Novaton residence.
On October 23, 1993, Appellant Ramon Rosell was observed bringing three kilograms of cocaine to the Novaton residence. The agents then followed two purchasers named "Tuna" and Jamie Jones after they left the Novaton residence carrying a brown paper bag. The agents stopped Jones' vehicle, and seized the package containing three kilograms of cocaine. Following this arrest, Mercedes Novaton called Francisco Novaton, who was at a race track with Officers Rodriguez and Lopez, to tell him that Jones had been "caught with three." At that point, Novaton returned to his residence with the two police officers. The video surveillance showed that Officer Lopez then walked up and down the street in front of the Novaton residence. Lopez also called to find out information concerning the company that had towed the seized car.
On October 26, 1993, the agents learned of another cocaine transaction that was about to take place at the Novaton residence. After the purchaser left the Novaton residence, the agents followed him to a different, nearby residence. The agents searched the house, after obtaining consent, and found four kilograms of cocaine. Shortly thereafter, the agents intercepted telephone calls in which Francisco Novaton discussed this seizure with a co-conspirator. Officer Lopez called the Miami Police Department on that day and asked for a check of police activity at the Novaton residence.
On November 1, 1993, agents intercepted a telephone conversation between Appellant Humberto Rodriguez and Francisco Novaton in which Novaton asked Rodriguez to bring over "two cousins" and "two nieces." In a call on the following day, Novaton and Rodriguez discussed "the green stuff" and "lettuce." The agents testified that these were coded references to cocaine and to money.
On November 6, 1993, the agents monitoring the Novaton residence received information about another impending transaction. They observed an individual named Jose Verona arrive in a pickup truck at the Novaton residence. Afterwards, Appellant Felipe Matamoros left the residence for a few minutes and then returned with a white bag. Appellant Leopoldo Rodriguez also arrived at the Novaton residence at about the same time, and he too was carrying a white bag. Matamoros and Rodriguez placed these bags in Verona's truck, and Verona left the Novaton residence. Verona returned home, and took both bags into his house. He then got back into his truck with one of the bags and drove away. After observing this activity, the agents had the police stop Verona, ostensibly for speeding, and discovered eight kilograms of cocaine in the bag he had.
On November 9, 1993, the agents monitored a telephone conversation between Mercedes Novaton and Officer Reynaldo Rodriguez, in which Novaton asked for information about the November 6 seizure. Rodriguez then came to the Novaton residence with information concerning it.
Investigators learned during the course of the investigation that Appellant Oscar Cuni, who was the owner of a bar named the "Bowl Bar," was a primary supplier for the cocaine operation run from the Novaton residence. On October 31, 1993, the agents intercepted a telephone conversation in which Cuni called to discuss Novaton's purchase of sixty-five kilograms of cocaine (referred to as a "fifteen year old niece" and a "fifty year old grandmother"). Four days later, Cuni was observed leaving the Novaton residence and driving to a different house. Agents observed Cuni removing a box and bag from his car which he gave to some people he met in front of the house. The box and bag were placed in the trunk of the individuals' car. At that point, Cuni appeared to sort and count money in the trunk of the car.
On several occasions, Officers Lopez and Rodriguez were observed providing escorts to individuals who were coming or going from the Novaton residence. On one occasion, a conversation between Cuni and Francisco Novaton was intercepted in which Cuni informed Novaton that he did not need protection from Officer Lopez on that particular day.
Officer Rodriguez also took steps on at least one occasion to determine whether the Novaton organization was under investigation. On November 17, 1993, he made a report of phantom drug delivery by other individuals in an effort to identify the undercover cars used by the police to investigate suspected drug deals.
On November 20, 1993, Officers Rodriguez and Lopez again demonstrated their involvement in the conspiracy. On that day, surveillance and wire intercepts suggested that an individual named Junior Ayala planned to go to the Novaton residence to pick up drug proceeds from an earlier delivery. After departing, Ayala called Mercedes Novaton and informed her that he sensed that he was being followed, and had abandoned the car with the drug proceeds still in it. Novaton called her husband and Officers Lopez and Rodriguez to come help. Ayala and the proceeds were eventually successfully recovered and returned to the Novaton residence by the officers. That night, Rodriguez was treated to free food and drinks (and allegedly prostitutes) by Cuni at his Bowl Bar. The government contends that Rodriguez admitted in a post-arrest statement that he knew Ayala's car contained drug proceeds, but Rodriguez denies having made such a statement.
In the early morning hours of December 13, 1993, the agents executed a search warrant on the Novaton residence. Francisco and Mercedes Novaton were in the house. The agents found a scanner tuned to police frequencies on which they could hear the communications of fellow officers who were searching other locations in connection with this investigation. The agents also located 4.1 grams of cocaine in the Novaton residence.
On May 27, 1994, a federal grand jury returned a 15-count, second superseding indictment charging these nine appellants and eight other defendants with various drug-related offenses. The indictment charged all of the defendants with conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. § 846 (Count 1). Francisco Novaton and Cuni were charged with operating a continuing criminal enterprise in violation of 21...
To continue reading
Request your trial
-
Petersen v. State
...is not pretextual ... ‘where there are relevant differences between the struck jurors and the comparator jurors.’ United States v. Novaton, 271 F.3d 968, 1004 (11th Cir. 2001). The prosecutor's explanation ‘does not demand an explanation that is persuasive, or even plausible; so long as the......
-
Prevatte v. French
...habeas petitioner established neither an "actual conflict" nor an "adverse effect" on his representation); United States v. Novaton, 271 F.3d 968, 1010-12 (11th Cir.2001) (en banc) (similarly applying two-part Sullivan inquiry). In Mickens, the Supreme Court clarified that "the Sullivan sta......
-
Woolf v. State
...pretextual, however, "where there are relevant differences between the struck jurors and the comparator jurors. " United States v. Novaton, 271 F.3d 968, 1004 (11th Cir.2001). The prosecutor's explanation "does not demand an explanation that is persuasive, or even plausible; so long as the ......
-
U.S. v. Kapordelis, No. 07-14499.
...burden of showing that, "absent those misrepresentations or omissions, probable cause would have been lacking." United States v. Novaton, 271 F.3d 968, 987 (11th Cir. 2001). "`[I]f, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there rema......
-
Other evidence rules
...the balance between probative value and prejudice will be reversed only on a inding of abuse of discretion. United States v. Novaton , 271 F.3d 968 (11th Cir. 2001). Cases Jordan v. State , 212 So. 3d 817 *; 2016 Miss. LEXIS 542 (Miss. 2016). The ruling below was untouched because the appel......
-
Other Evidence Rules
...the balance between probative value and prejudice will be reversed only on a finding of abuse of discretion. United States v. Novaton , 271 F.3d 968 (11th Cir. 2001). United States v. Alarcon , 261 F.3d 416 (5th Cir. 2001). The court must comply with a defense request to perform a Rule 403 ......
-
Other Evidence Rules
...the balance between probative value and prejudice will be reversed only on a finding of abuse of discretion. United States v. Novaton , 271 F.3d 968 (11th Cir. 2001). Cases Old Chief v. United States , 519 U.S. 172 (1997). Trial court abused its discretion under Rule 403 where the accused o......
-
Other Evidence Rules
...the balance between probative value and prejudice will be reversed only on a finding of abuse of discretion. United States v. Novaton , 271 F.3d 968 (11th Cir. 2001). Cases Old Chief v. United States , 519 U.S. 172 (1997). Trial court abused its discretion under Rule 403 where the accused o......