U.S. v. Fermin, s. 294

• Citation: 32 F.3d 674
• Decision Date: 11 August 1994
• Docket Number: 295 and 1178,Nos. 294,D,s. 294
• Parties: UNITED STATES of America, Appellee, v. Juan FERMIN, Hector Fermin, and Freddy Fermin, Defendants-Appellants. ockets 93-1167, 93-1267 and 93-1731.
• Court: U.S. Court of Appeals — Second Circuit

Page 674

32 F.3d 674

UNITED STATES of America, Appellee, v. Juan FERMIN, Hector Fermin, and Freddy Fermin, Defendants-Appellants.

Nos. 294, 295 and 1178, Dockets 93-1167, 93-1267 and 93-1731.

United States Court of Appeals, Second Circuit.

Argued June 3, 1994.

Decided Aug. 11, 1994.

Lawrence A. Dubin, New York City (Goldberger & Dubin, on the brief), for defendant-appellant Juan Fermin.

Bobbi C. Sternheim, New York City, for defendant-appellant Hector Fermin.

Kenneth A. Caruso, New York City (Andrew W. Feinberg, Brian H. Polovoy, Sherman & Sterling, on the brief), for defendant-appellant Freddy Fermin.

Robert W. Ray, Asst. U.S. Atty., New York City (Mary Jo White, U.S. Atty., Alexandra Rebay, Asst. U.S. Atty., on the brief), for appellee.

Before NEWMAN, Chief Judge, OAKES and PRATT, Circuit Judges.

JON O. NEWMAN, Chief Judge:

Defendants Freddy Fermin ("Freddy"), Juan Fermin ("Juan"), and Hector Fermin ("Hector") appeal from judgments of conviction and sentences on various narcotics and firearm offenses entered by the United States District Court for the Southern District of New York (Louis J. Freeh, Judge). On appeal, each defendant asserts that the District Court committed legal errors in pretrial procedure, trial rulings, or sentencing determinations. We conclude that none of the asserted errors justifies a new trial for any defendant, though we disapprove or question certain sentencing determinations made by the District Court. We therefore affirm all the convictions but vacate and remand the sentences of Juan and Freddy for reconsideration.

Background

Until their arrests in July of 1991, Juan and his two brothers, Freddy and Hector, operated a narcotics enterprise from their jointly owned auto-repair shop, 3 Way Autobody ("3 Way"), located in the Bronx. The Government first became aware of the Fermins' narcotics activity through the reports of confidential informants. The Government thereafter collected evidence of the brothers' activity at 3 Way through various undercover and surveillance operations, phone-tap and bugging devices, and searches of 3 Way and other related locations at the time of the Fermins' arrests.

Juan, Freddy, and Hector were initially indicted on multiple narcotics and firearm counts with many alleged co-conspirators. The Fermins were ultimately tried with three other co-defendants in March and April of 1992. The evidence presented at trial to establish that the three appellants were conducting a narcotics operation from 3 Way consisted primarily of numerous tape-recorded conversations between the Fermins and other participants in the drug trade, the testimony of officers who conducted undercover and surveillance operations, and narcotics-related paraphernalia recovered from 3 Way and other locations connected to the Fermins.

After a seven-week jury trial, Freddy was convicted on all five counts submitted to the jury, and Juan was convicted on four of the five counts submitted to the jury. Specifically, both Juan and Freddy were convicted of conspiring to distribute and possess with intent to distribute heroin, cocaine, and crack from January 1, 1990, through July 16, 1991, in violation of 21 U.S.C. Sec. 846; running a business for the purposes of distributing heroin, cocaine, and crack, in violation of 21 U.S.C. Sec. 856(a); and using a firearm in relation to a narcotics conspiracy, in violation of 18 U.S.C. Sec. 924(c). Juan was also convicted of operating a continuing criminal enterprise from January 1, 1990, through July 16, 1991, in violation of 21 U.S.C. Sec. 848(a), and Freddy was also convicted on two additional firearms counts, in violation of 18 U.S.C. Sec. 924(c) and 18 U.S.C. Sec. 922(g).

A hung jury as to Hector and another co-defendant in the first trial necessitated a second trial. After a subsequent three-week trial in May 1992, Hector was convicted on one narcotics count, conspiracy to distribute and possess with intent to distribute cocaine and crack, in violation of 21 U.S.C. Sec. 846.

Juan was sentenced to a prison term of 388 months and five years of supervised release, Freddy received a sentence of 360 months' imprisonment followed by ten years of supervised release, and Hector was sentenced to 121 months' imprisonment as well as five years of supervised release.

Discussion

I. Motion to Suppress Evidence from Electronic Surveillance

After an initial investigation, the Government applied for authorization to intercept telephone conversations from 3 Way. A 52-page affidavit by Drug Enforcement Administration ("DEA") agent William Klein provided the foundation for the wiretap application. The affidavit detailed observations and information from agents and two confidential informants ("CI-1" and "CI-2"), all of whom had conducted limited undercover operations within 3 Way. On the basis of this affidavit, then-District Judge Pierre N. Leval authorized the requested wiretaps for 30 days and subsequently renewed the wiretap orders. However, before trial the Government disclosed that Klein's affidavit contained misstatements and omissions concerning the criminal history of CI-1. Specifically, the affidavit had falsely stated that CI-1 had a 1978 narcotics conviction though he had no such conviction, and that CI-1 had been an informant since 1979 though he had begun to provide information only in 1984. The affidavit also failed to note that CI-1's weapons conviction involved the theft of a gun from an Assistant U.S. Attorney's office and incorrectly described this felony conviction as a misdemeanor.

After submissions from the parties, the District Court concluded that the defendants had failed to show that the affidavit contained intentional or reckless falsehoods that would justify a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Nevertheless, the Court decided to conduct an evidentiary hearing to clarify the record. After the hearing, the Court faulted the Government for its behavior but determined that there had not been an intentional misleading of Judge Leval. The District Court further concluded that even if the affidavit contained deliberate or reckless errors, a corrected affidavit still would have provided probable cause for Judge Leval to authorize the wiretaps.

We need not explore the reason for the affidavit's errors because we agree with the District Court's conclusion that Judge Leval would have found probable cause for the wiretaps even if presented with a proper affidavit. Despite the defendants' claims to the contrary, we do not believe Judge Leval would have completely discounted the evidence presented through CI-1 even if CI-1's criminal history and time as an informant had been accurately reported. The past reliability of CI-1 and the corroborating evidence in the affidavit would have sufficiently assured Judge Leval of CI-1's reliability in this case. Cf. United States v. Ofshe, 817 F.2d 1508, 1513 (11th Cir.) (omission of informant's criminal convictions in search warrant application did not invalidate warrant), cert. denied, 484 U.S. 963, 108 S.Ct. 451, 98 L.Ed.2d 391 (1987); United States v. Levasseur, 816 F.2d 37, 43-44 (2d Cir.1987) (failure of affidavit to properly outline informant's criminal history and other background information did not require Franks hearing). Moreover, the affidavit contained significant evidence stemming from Government agents and CI-2 that supported the probable cause finding and alone would have justified the wiretap authorization.

Finding no error in the District Court's conclusion that, even if the affidavit supporting the wiretap application included intentional or reckless falsehoods, the affidavit contained a "residue of independent and lawful information sufficient to support probable cause," United States v. Ferguson, 758 F.2d 843, 849 (2d Cir.), cert. denied, 474 U.S. 1032, 106 S.Ct. 592, 88 L.Ed.2d 572 (1985), we thus agree with the Court's conclusion that suppression of the evidence obtained via the wiretaps was not required.

II. Testimony Referring to "Criminal Histories"

During the first trial, DEA agent Klein was asked on cross-examination about his basis for applying for the wiretap order. On his redirect examination, he said that he relied in part on the "criminal histories ... of the defendants." Upon objection, the District Court immediately struck this comment, instructed the jury to disregard the remark, and denied the defendants' motion for a mistrial. Claiming that this Circuit mandates a new trial after the improper introduction of a defendant's past criminal record, Freddy contends that the District Court erred when it denied the mistrial motion. He relies on United States v. Rinaldi, 301 F.2d 576 (2d Cir.1962), which suggests that an improper reference to a defendant's criminal record requires a new trial.

We continue to believe that in some instances the improper introduction of evidence of a defendant's prior criminal record can constitute prejudicial error beyond the capacity of cautionary instructions to cure, see Rinaldi, 301 F.2d at 578; see also United States v. Pagan, 721 F.2d 24, 31 (2d Cir.1983); United States v. Figueroa, 618 F.2d 934, 944 (2d Cir.1980). However, the incident here is considerably different from what occurred in Rinaldi.

In Rinaldi, though the defense had not placed the defendant's character in question, the prosecution directly asked the defendant's wife if her husband had ever been convicted of a crime, and she answered affirmatively. See 301 F.2d at 577-78. In the instant case, the defense took the risky step of challenging before the jury the evidence Klein relied upon when seeking authorization to wiretap the offices of 3 Way. Then on redirect, when the prosecution sought to clarify the basis for the wiretap application, Klein made his unanticipated reference to "criminal histories." Thus, the reference to the defendant's criminal record in Rinaldi was the product of a blatantly improper question...