428 F.3d 1015 (11th Cir. 2005), 03-14400, United States v. Ochoa-Vasquez

Docket Nº:03-14400, 04-10718.
Citation:428 F.3d 1015
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Fabio OCHOA-VASQUEZ, a.k.a. Julio, a.k.a. Pepe, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Juan Nicholas Bergonzoli, Defendant, Fabio Ochoa-Vasquez, Interested Party-Appellant.
Case Date:October 20, 2005
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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428 F.3d 1015 (11th Cir. 2005)

UNITED STATES of America, Plaintiff-Appellee,


Fabio OCHOA-VASQUEZ, a.k.a. Julio, a.k.a. Pepe, Defendant-Appellant.

United States of America, Plaintiff-Appellee,


Juan Nicholas Bergonzoli, Defendant,

Fabio Ochoa-Vasquez, Interested Party-Appellant.

Nos. 03-14400, 04-10718.

United States Court of Appeals, Eleventh Circuit.

Oct. 20, 2005

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G. Richard Strafer, G. Richard Strafer, P.A., Roy E.Black, Black, Strebnick & Kornspan, Miami, FL, for Appellants.

Anne R. Schultz, Emily Smachetri, Dawn Bowen, Miami, FL, for U.S.

Stacey Kim Sutton, Carlton Fields, P.A., West Palm Beach, FL, for ACLU of FL, Amicus Curiae.

Lucy A. Dalglish, Reporters Committee, Arlington, VA, for Reporters Committee for Freedom of the Press, Amicus Curiae. Appeals from the United States District Court for the Southern District of Florida, D. C. Docket Nos. 99-00196-CR-PAS, 99-06153-CR-KMM.

Before BARKETT and HULL, Circuit Judges, and EDENFIELD[*] , District Judge.

EDENFIELD, District Judge:

This opinion consolidates and decides the appeals of Fabio Ochoa-Vasquez ("Ochoa") in U.S. v. Ochoa-Vasquez, Case Number 03-14400, in which Ochoa is a criminal defendant, and U.S. v. Bergonzoli, Case Number 04-10718, in which Ochoa is an intervenor. In Ochoa-Vasquez, Ochoa appeals his conviction and sentence for drug trafficking violations, two orders denying him access to judicial proceedings and records, and the use of a secret docketing system. In Bergonzoli, Ochoa appeals the district court's striking of his motion to unseal court proceedings and records, and its refusal to disqualify defendant Nicolás Bergonzoli's counsel, Joaquin Perez, prior to that ruling.


In the 1980s Ochoa was a high-ranking member of the Medellín drug cartel based

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out of Medellín, Colombia. However, pursuant to a leniency program, he surrendered to Colombian authorities in the early 1990s, served six years in a Colombian prison, and was released in 1997. Two years later the United States indicted Ochoa for his part in a post-1997 narcotics operation involving trafficker Alejandro Bernal.

The United States Drug Enforcement Agency (DEA) targeted Bernal in "Operation Millennium," a large drug-trafficking investigation conducted jointly with Colombian law enforcement agencies in 1999-2000. Operation Millennium agents acquired audio surveillance tapes from a wiretap of Bernal's Bogotá office revealing his coordination of drug-trafficking operations and the participation of various other defendants. The tapes reveal Ochoa's involvement. Accordingly, Colombian authorities arrested Ochoa based on a U.S. warrant in October 1999, and he was extradited to this country in 2001.

At trial, the government presented substantial evidence of Ochoa's guilt, including the testimony of Ochoa's co-conspirators, Bernal and Hector Londoño. They testified that Ochoa entered the conspiracy by assuming a narcotics-related debt that Bernal owed to another drug trafficker, Nicolás Bergonzoli. Following his earlier incarceration in Colombia, Ochoa was cash-poor and land-rich. He thus paid Bernal's debt to Bergonzoli with real estate in exchange for Bernal's promise to repay Ochoa with cash from future drug-trafficking operations. To secure his investment, Ochoa actively advised Bernal and otherwise facilitated Bernal's trafficking activities. Based on extensive evidence, the jury convicted Ochoa of conspiracy to possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and conspiracy to import five kilograms or more of cocaine into the U.S., in violation of 21 U.S.C. §§ 952 and 963.

Ochoa sought to admit evidence at trial about an illegal scheme called the "Rehabilitation Program of Narcotics Traffickers" (the "Program").1 The Program was a scheme in which DEA informant Baruch Vega solicited drug traffickers to surrender to the U.S. government by promising to arrange phony cooperation deals. The traffickers were told that they could join the Program by paying large sums of money and surrendering drugs to U.S. authorities through phony drug busts. The confiscated drugs would then be attributed to other traffickers. The Program's recruits were told that they would receive credit for their "cooperation," enabling them to obtain favorable plea bargains from U.S. prosecutors. It remains unclear whether any of these promises were ever carried out, 2 and the prosecutors in Ochoa's case disavow any knowledge of Vega's scheme prior to Ochoa's indictment.

After his arrest, while awaiting extradition from Colombia, Ochoa was solicited to join the Program for $30 million in cash and "confiscated" narcotics. Several meetings took place between Ochoa's brother Jorge, alleged Program participant Bergonzoli, and Bergonzoli's attorney, Joaquin

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Perez. Bergonzoli encouraged Ochoa to join the Program and spoke openly of his participation in staged drug transactions and the resulting leniency he received. Ochoa claims that during these meetings he retained Perez as counsel to assist him in negotiating a deal with U.S. authorities. However, Ochoa ultimately refused to join the Program, and in February 2000, he purportedly fired Perez. Meanwhile, Ochoa's family had secretly recorded the meetings and turned the tapes over to the U.S. Attorney's Office. Ochoa alleges that the tapes, plus pressure from U.S. Customs, sparked an internal investigation of Vega and ultimately resulted in the Program's termination.

Prior to his trial, Ochoa sought to obtain various documents relating to the participation of Bergonzoli and others in the Program. Apparently, the government and the co-defendants had agreed to seal many documents as the cases progressed. Ochoa thus moved to unseal documents relevant to co-defendants in his own case, including motions, orders, hearing transcripts, and pleadings. He also moved as an intervenor to unseal documents in a separate criminal case against Bergonzoli. The district judges in those cases eventually unsealed the majority of the documents Ochoa sought. However, a few Bergonzoli documents, including plea colloquies, sentencing memoranda, downward-departure motions, and sentencing hearings, still remain sealed and are the subject of this appeal.

A. Trial and Issues on Appeal in Ochoa-Vasquez

Before trial, Ochoa moved to dismiss the indictment, suppress evidence from all witnesses involved in the Program, and disqualify Perez from representing Bergonzoli, who Ochoa alleged was a potential witness against him. He claimed violations of due process in that the Program constituted outrageous government conduct and because his prosecution was a vindictive and retaliatory response to his blowing the whistle on the Program.

The district court denied Ochoa's motions, finding that "Defendant [had] failed to demonstrate any nexus between Vega's misconduct and the indictment and prosecution of Defendant." It subsequently granted the government's motion in limine to prevent him from making reference to the Program at trial. The judge also granted the government's motion for an "innominate3 and partially sequestered jury" because of security concerns.

Ochoa now appeals his conviction and sentence, arguing that the district court erroneously:

(1)allowed the government to constructively amend the indictment or materially vary its proof at trial from the allegations in the indictment;

(2)refused to disqualify Bergonzoli's attorney;

(3)denied Ochoa's pre- and post-trial motions without an evidentiary hearing;

(4)excluded evidence about government

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witnesses' participation in the Program;4

(5)empaneled an anonymous jury; denied his request for additional voir dire and jury questionnaires; refused to permit an investigation of potential juror misconduct; and permitted the prosecution to strike jurors in a racially discriminatory manner;

(6)denied his motion to dismiss for improper venue; and

(7) tried and sentenced him for offenses other than those for which he was extradited.

Ochoa also alleges, as a member of the public, violations of his First Amendment right of access to judicial proceedings and records. He asserts that the use of a secret docket and improperly sealed files in, inter alia, Ochoa-Vasquez and Bergonzoli, violated his First Amendment rights and his "trial rights" under the Fifth and Sixth Amendments.

B. Ochoa's Intervention and Appeal in Bergonzoli

While attempting to unseal files, Ochoa sought information about the fate of Bergonzoli, who sold Bernal's drug debt to Ochoa and later attempted to recruit Ochoa into the Program. He argued that he needed information concerning Bergonzoli's participation in the Program because Bergonzoli was a potential trial witness.5

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He had discovered the Bergonzoli case through a record in the U.S. District Court for the District of Connecticut, where the case was first filed, containing the post-transfer case number assigned by the Southern District of Florida. After it was transferred into the Southern District of Florida on 3/23/99, every proceeding and record was filed under seal and the case name, case number, and docket sheet were also undisclosed.

Prior to trial, Ochoa moved the Ochoa-Vasquez district judge for access to the proceedings and records sealed by the Bergonzoli district judge. The government responded that the Ochoa-Vasquez district judge did not have authority to unseal records in a case assigned to a different judge. The judge denied Ochoa's motion. After the prosecution rested, Ochoa renewed his motion before the Ochoa-Vasquez district judge, citing a need to determine...

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