U.S. v. Carrasco, No. 03-10304.
| Decision Date | 26 August 2004 |
| Docket Number | No. 03-10304. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Rigoberto CARRASCO, Bienvenito Juan Ruiz, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
J. Rafael Rodriguez (Court-Appointed), Rodriguez & Fernandez, PA, Marisa Tinkler Mendez (Court-Appointed), Marisa Tinkler Mendez, P.A., Miami, FL, for Defendants-Appellants.
Maria Beguiristain, Anne R. Schultz, U.S. Atty., Kathleen M. Salyer, Miami, FL, for Plaintiff-Appellee.
Appeals from the United States District Court for the Southern District of Florida.
Before BLACK, BARKETT and STAHL*, Circuit Judges.
After a jury trial, Appellant Rigoberto Carrasco was convicted of attempt to possess with intent to distribute five kilograms or more of cocaine and sentenced to 240 months' imprisonment. Appellant Bienvenito Ruiz was convicted of conspiracy to possess with intent to distribute five kilograms or more of cocaine and attempt to possess with intent to distribute five kilograms or more of cocaine,1 and sentenced to life imprisonment. Appellants appeal their convictions and sentences. We reverse Carrasco's conviction, but affirm Ruiz's conviction and sentence except insofar as we remand for the district court to amend the judgment to reflect accurately Ruiz's offenses of conviction.
The charges against Appellant Carrasco and Appellant Ruiz stem from a drug transaction set up by a confidential informant, Maria Nuñez. In cooperation with the Drug Enforcement Agency (DEA), Nuñez contacted her brother-in-law, codefendant Rodriguez, to propose the theft of 40 kilograms of cocaine from a woman in Miami. Rodriguez eventually agreed, and the DEA arranged for a warehouse to serve as the location for the robbery.
On April 17, 2002, Rodriguez and codefendant Ceballos met Nuñez at the warehouse, where DEA agents arrested them. Rodriguez and Ceballos were carrying weapons.
Rodriguez immediately agreed to cooperate with law enforcement officials by telephoning the individuals he planned to have sell the cocaine for him. Rodriguez called Appellant Carrasco, who congratulated Rodriguez. Rodriguez asked Carrasco to pick up the drugs and bring money with him. Carrasco responded that the money was squared away. Carrasco later arrived to meet Rodriguez, and DEA agents arrested him. Carrasco waived his rights and said he knew people in the drug business and would be able to assist the DEA. Carrasco also stated he had gone to meet Rodriguez so he could "do work" for Rodriguez.
Rodriguez also called codefendant Sierra and left a message for him. When the DEA agents brought Rodriguez to prison, they gave Rodriguez's cell phone to Nuñez. Nuñez spoke to Sierra about the purported 40 kilograms of cocaine. Once, when Nuñez called Sierra, Appellant Ruiz answered the phone and identified himself as "Juanito," Sierra's friend. After a few discussions with Sierra, Nuñez arranged a meeting with him so Sierra could examine the cocaine. When asked by Nuñez whether he would be arriving at the meeting with Appellant Ruiz only, Sierra responded in the affirmative.
Sierra and Appellant Ruiz arrived at the appointed time and place to meet with Nuñez. Sierra and Ruiz got out of the car in which they had arrived and talked with Nuñez outside. Nuñez discussed how much cocaine she had and, when Sierra asked about the quality of the cocaine, Nuñez responded that it was good. After Sierra stated the cocaine would sell, and Sierra and Appellant Ruiz told Nuñez that no others were coming to the meeting, agents arrested Sierra and Ruiz.
At trial, Appellant Carrasco testified on his own behalf and denied ever dealing drugs with Rodriguez. Carrasco testified that when Rodriguez asked him to take part in a drug deal, he refused.2 Carrasco testified that, after his conversation with Rodriguez, he learned Rodriguez had been using drugs, and out of concern he had contacted Rodriguez's brother who said he had been looking for Rodriguez for days. Carrasco further testified he went to meet Rodriguez on the day of their arrests because he wanted to find Rodriguez and help him with his drug problem.
In rebuttal, the Government presented evidence of Appellant Carrasco's prior involvement in the drug trade. More specifically, the Government presented testimony from Ceballos that, in 1989 or 1990, Appellant Carrasco had a tire business that served as a front for a drug operation. Ceballos further testified that he (1) attended a meeting at the business about a drug ripoff, (2) purchased ounce amounts of cocaine from Appellant Carrasco on at least twelve occasions, (3) recalled seeing Appellant Carrasco adding cutting agents to drugs, and (4) could recall at least three occasions on which he had seen Carrasco give money to Rodriguez in amounts ranging from $2000 to almost $5000 for cocaine Rodriguez had fronted to Carrasco. When Appellant Carrasco objected to Ceballos's testimony on Federal Rule of Evidence 404(b) notice grounds, the district court overruled the objection. The district court initially stated Ceballos's testimony was rebuttal and therefore did not fall within Rule 404(b). The district court subsequently ruled the generalized notice previously given by the Government was sufficient to satisfy the Rule 404(b) notice requirement. At the close of the Government's rebuttal case, Carrasco moved to retake the stand to rebut Ceballos's testimony. The district court denied Carrasco's motion.
Appellant Ruiz also testified on his own behalf at trial. He told the jury that, on the day of his arrest, he had been with Sierra because Sierra was a Santeria priest. Ruiz testified he was trying to make himself a saint in the Santeria religion. Ruiz further testified that he had accompanied Sierra to the meeting with Nuñez because Sierra had asked him to go with him to help someone in trouble, not because he intended to obtain drugs. Ruiz further testified that when he realized something suspicious was going on, he attempted physically to distance himself from Sierra and Nuñez.
In rebuttal, the Government presented testimony from Ceballos regarding a conversation he had with Appellant Ruiz in prison. Ceballos testified that Appellant Ruiz said he had gone with Sierra to pick up the cocaine and had ended up in a lot of trouble. Ceballos testified Appellant Ruiz said he was going to attribute any statements he might have made while he was with Sierra to the Santeria religion.
The jury convicted Appellant Carrasco on the only charge against him: attempt to possess with intent to distribute five kilograms or more of cocaine. The jury convicted Appellant Ruiz on both counts against him: conspiracy to possess with intent to distribute five kilograms or more of cocaine and attempt to possess with intent to distribute five kilograms or more of cocaine. Carrasco and Ruiz appeal their convictions and sentences.
Appellant Carrasco contends the district court should have granted a mistrial when the Government presented testimony from Andres Ceballos implicating Carrasco in specific prior acts of drug dealing without providing notice as required under Federal Rule of Evidence 404(b). Carrasco further contends the district court committed reversible error when it refused to permit him to take the stand in surrebuttal to address Ceballos's testimony.
We review the district court's decisions as to the admissibility of evidence for abuse of discretion. United States v. Perez-Tosta, 36 F.3d 1552, 1560 (11th Cir. 1994) (citation omitted).
Federal Rule of Evidence 404(b) provides:
(b) Other Crimes, Wrongs, or Acts.— Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
The rule requires "the prosecution to provide notice, regardless of how it intends to use the extrinsic act evidence at trial, i.e., during its case-in-chief, for impeachment, or for possible rebuttal." Fed.R.Evid. 404(b) advisory committee's note to 1991 amendments. Thus, the Government was required to provide notice of the prior bad acts to which Ceballos testified in rebuttal.3
Moreover, although the Advisory Committee Notes discuss Rule 404(b) as containing a "generalized notice provision," the prosecution still must "apprise the defense of the general nature of the evidence of extrinsic acts." Id. The Government initially gave notice that it might use the fact of Appellant Carrasco's May 1994 arrest and subsequent conviction for drug and firearms offenses. The Government subsequently gave notice that it might introduce evidence of two additional prior bad acts: (1) an instance (at an unspecified time) when Rodriguez fronted marijuana for sale to Appellant Carrasco, who eventually paid between $3000 and $4000 to Rodriguez for the drugs; and (2) an instance (again at an unspecified time) when codefendant Rodriguez, Appellant Carrasco, and another individual stole foreign currency from an office building in Miami and sold it for $3000 in United States currency.
In ruling admissible the evidence pertaining to Appellant Carrasco's past dealings with Rodriguez, including "evidence of past narcotics dealings where Rodriguez `fronted' drugs to Carrasco for distribution," the district court held the evidence to be inextricably intertwined with the Government's proof of the charged offenses and therefore outside the realm of Rule 404(b). Arguably, Ceballos's testimony regarding transactions...
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