U.S. v. Garcia

Decision Date17 May 2002
Docket NumberDocket No. 01-1086.
Citation291 F.3d 127
PartiesUNITED STATES of America, Appellee, v. Carlos GARCIA, Defendant-Appellant.
CourtU.S. Court of Appeals — Second Circuit

Robert L. Moore, Hempstead, NY, for Defendant-Appellant.

Catherine W.H. So, Assistant United States Attorney (Alan Vinegrad, United States Attorney, Emily Berger, Assistant United States Attorney, on the brief), Brooklyn, NY, for Appellee.

Before: POOLER, KATZMANN, Circuit Judges, and HURD, District Judge.*

POOLER, Circuit Judge.

Carlos Garcia appeals from the February 9, 2001, judgment of the United States District Court for the Eastern District of New York (Carol B. Amon, Judge) after a trial jury convicted him of one count of conspiracy to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(ii)(II), and 846, and one count of possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(ii)(II). The district court sentenced Garcia principally to two concurrent terms of 120 months imprisonment. On appeal, Garcia challenges two of the court's evidentiary rulings. First, Garcia argues that the court erred in admitting evidence of Garcia's prior conviction for the sale of cocaine to show his knowledge or intent regarding the instant drug deal. Second, Garcia argues that the court erred in allowing the government informant to interpret a code in which he and Garcia allegedly spoke during a recorded phone conversation. We find that the district court abused its discretion in both admitting the prior conviction and allowing the testimony. Furthermore, we find that these errors were not harmless, and we vacate both of Garcia's convictions and remand for a new trial.

BACKGROUND

We take the following facts from the testimony at trial. The police arrested Carlos Garcia and Diego Ceron in July 2000 after Ariel Toro Balcarcel1, a drug dealer turned government informant and cooperating witness, allegedly purchased three kilograms of cocaine from Garcia. Because Toro Balcarcel's testimony formed the crux of the government's case against Garcia and Ceron, we discuss his background here in some detail. Toro Balcarcel has an extensive criminal history. Born in Argentina, Toro Balcarcel first entered the United States in July 1995 with the intent to work on his music career. He stayed only one month, finding no success, and returned to Argentina. In Argentina, Toro Balcarcel began working for Arturo Bueno, a known drug dealer and the head of a criminal organization. Toro Balcarcel returned to the United States in August of 1995, this time with the express purpose of distributing heroin. Shortly after his arrival, police arrested Toro Balcarcel in New York when they discovered him in an apartment containing approximately two kilograms of heroin. In addition, Toro Balcarcel possessed seven grams of heroin on his person. Toro Balcarcel pleaded guilty to one count of simple possession of heroin, and the court sentenced him to five months imprisonment, three years probation, and a $1,000 fine. Although Toro Balcarcel testified that he was not responsible for the two kilograms of heroin, he admitted that he was in the apartment because he was supposed to distribute a different shipment of heroin.

Authorities released Toro Balcarcel from prison in January 1996. He did not want to pay the outstanding fine, and he wanted to see his family, so he returned to Argentina. Toro Balcarcel did not seek the permission of his probation officer before leaving the United States, and a warrant issued for his arrest. Beginning in late 1996, Toro Balcarcel worked in Argentina and Colombia in the trafficking end of the drug business. Specifically, Toro Balcarcel recruited and supervised the individuals who worked as couriers to smuggle cocaine and heroin out of South America and into various countries, including the United States. Toro Balcarcel testified that part of his responsibility was to ensure that the couriers swallowed all the balloons containing heroin that they could. Toro Balcarcel also testified that one of the couriers he supervised died when some of the balloons broke, but he denied any responsibility for this.

In November 1997, Toro Balcarcel used a false name and false passport to return to the United States to supervise the arriving couriers and to distribute heroin. In September 1998, police arrested Toro Balcarcel for possessing forged passports. Authorities detained him for two months and then deported him to Colombia. In December 1998, Toro Balcarcel again used a forged passport to illegally enter the United States for the purpose of distributing drugs.

On March 31, 1999, police arrested Toro Balcarcel for possession with intent to distribute heroin and conspiracy to distribute heroin after they found Toro Balcarcel with three kilograms of heroin. Toro Balcarcel admitted that when the police arrested him, he lied about his identity, knowledge, and involvement to the police, his lawyer, and the court. In fact, it was not until August or October 1999 that Toro Balcarcel's lawyer informed the court of Toro Balcarcel's true identity. Shortly after his arrest, Toro Balcarcel entered into a cooperation agreement with the federal government in which he agreed to plead guilty to the charge of conspiracy to distribute heroin and to cooperate in police investigations in exchange for a U.S.S.G. § 5K1.1 letter. In August 1999, the government released Toro Balcarcel on bail in order for him to cooperate, and they gave him money and a phone card.

Toro Balcarcel testified that he worked as a drug dealer because he wanted to live well. All of his trips into the United States, save the first one, were for the purpose of distributing drugs. All of his entries, save the first one, were illegal and involved using false names and false documents. Toro Balcarcel testified that he had used many aliases while working in the drug industry and that he lied to the police about his true identity on numerous occasions in order to avoid apprehension.

At the time of Garcia's trial, Toro Balcarcel had pleaded guilty and was awaiting sentencing. He testified that he understood he faced a statutory minimum of ten years imprisonment and a maximum of life in prison. He also knew the § 5K1.1 letter would allow the court to sentence him to less than ten years. Finally, Toro Balcarcel testified that his cooperation agreement covered every criminal act he committed between 1995 and 1999 and that he cooperated because he did not want to go to jail and did not want to be deported.

While he was cooperating with the government, Toro Balcarcel completed an asbestos trade program and began working in the asbestos industry. In approximately December of 1999, Toro Balcarcel started working on an asbestos job with Ceron, with whom he became friendly and began socializing. After several months, Toro Balcarcel approached Ceron with a proposed drug deal. Toro Balcarcel volunteered that he had some friends interested in buying heroin, and Ceron attempted to find a drug supplier. After an initial failed effort to coordinate a transaction with another individual, Ceron connected Toro Balcarcel with Garcia, a supervisor on an asbestos removal project who worked with Ceron. According to Toro Balcarcel, Garcia did not deal in heroin, but Garcia offered to supply Toro Balcarcel with cocaine. Toro Balcarcel testified that he ordered ten kilograms of cocaine from Garcia. Throughout the negotiations, Ceron continued to act as an intermediary between Toro Balcarcel and Garcia and served as the primary person through whom Toro Balcarcel could contact Garcia.

On July 12, 2000, under police monitoring, Toro Balcarcel met Garcia and Ceron at Garcia's house. According to Toro Balcarcel, Garcia had only three of the ten kilograms of cocaine that he had requested, so they agreed that Garcia would provide the drugs in separate deliveries and that Toro Balcarcel would pay Garcia at the end. Toro Balcarcel did not explain why Garcia agreed to front drugs on a first time deal to someone with whom he had no history of dealing. The detectives monitoring Garcia's house did not observe a transfer, but when Toro Balcarcel met the police after he left Garcia's house, Toro Balcarcel produced from the trunk of his van a bag containing three kilograms of cocaine. After Toro Balcarcel left Garcia's house, the police arrested Garcia and Ceron on drug charges and searched the house pursuant to a warrant. The police did not find any cocaine, drug paraphernalia, or a substantial sum of money in the house or on either Garcia or Ceron.

As one of the main pieces of evidence at trial, the government offered the tape and transcript of a July 10, 2000, recorded phone conversation between Toro Balcarcel and Garcia. The evidence showed that on July 10, 2000, Toro Balcarcel telephoned Ceron, who handed the phone to Garcia, and Toro Balcarcel and Garcia had a short conversation. A plain reading of the transcript reflects a conversation between Toro Balcarcel and Garcia in which they discuss a potential asbestos project, including details such as the number and positions of the necessary employees, the required licenses and paperwork, and the expected payment. They also agreed to meet to discuss the project further. The substantive portion of the conversation follows:2

Ceron: Hello.

Toro Balcarcel: What's up?

Ceron: What's up?

Toro Balcarcel: All okay?

Ceron: You coming?

Toro Balcarcel: No, dude, I can't ... I can't get there on time, man.

Ceron: [unintelligible]

Toro Balcarcel: No, man, this is why I called him early to have a talk with him. Isn't he [] there?

Ceron: Yes.

Toro Balcarcel: Put Caliche on.3

Garcia: Aloha.

Toro Balcarcel: What's up, man?

Garcia: What's up?

Toro Balcarcel: Listen, man, I can't there on time because...

To continue reading

Request your trial
180 cases
  • U.S. v. Eppolito
    • United States
    • U.S. District Court — Eastern District of New York
    • June 30, 2006
    ...instructed Corso to contact Guido Bravatti, was somewhat ambiguous, as drug transactions often are. See, e.g., United States v. Garcia, 291 F.3d 127, 139 (2d Cir.2002) ("We long have recognized that drug dealers seldom negotiate the terms of their transactions with the same clarity as busin......
  • Warner Bros. Records Inc. v. Lime Group Llc.
    • United States
    • U.S. District Court — Southern District of New York
    • May 25, 2010
    ...than a lay witness in testifying as to opinions that go beyond on his or her immediate perception) (citing United States v. Garcia, 291 F.3d 127, 139 & n. 8 (2d Cir.2002)); In re Zyprexa Prods. Liab. Litig., 489 F.Supp.2d at 283-84 (noting that an expert is “permitted wide latitude to offer......
  • Arista Records Llc v. Lime Group Llc
    • United States
    • U.S. District Court — Southern District of New York
    • May 2, 2011
    ...than a lay witness in testifying as to opinions that go beyond on his or her immediate perception) (citing United States v. Garcia, 291 F.3d 127, 139 & n. 8 (2d Cir.2002)); In re Zyprexa Prods. Liab. Litig., 489 F.Supp.2d at 283–84 (noting that an expert is “permitted wide latitude to offer......
  • U.S.A v. Whitten
    • United States
    • U.S. Court of Appeals — Second Circuit
    • June 30, 2010
    ...not directly to what Wilson knew or believed. Cf. United States v. Kaplan, 490 F.3d 110, 117-19 (2d Cir.2007); United States v. Garcia, 291 F.3d 127, 140-41 (2d Cir.2002). There is ample evidence of Jacobus's many connections to the Stapleton Crew and relationships with its members. This fo......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT