U.S. v. Nunez

• Citation: 432 F.3d 573
• Decision Date: 21 December 2005
• Docket Number: No. 04-4484.,No. 04-4504.,04-4484.,04-4504.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jenny NUNEZ, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Carlos Alberto Nunez, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

432 F.3d 573

UNITED STATES of America, Plaintiff-Appellee, v. Jenny NUNEZ, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Carlos Alberto Nunez, Defendant-Appellant.

No. 04-4484.

No. 04-4504.

United States Court of Appeals, Fourth Circuit.

Argued September 22, 2005.

Decided December 21, 2005.

ARGUED: Meghan Suzanne Skelton, Assistant Federal Public Defender, Office of the Federal Public Defender, Alexandria, Virginia, for Appellants. Sara Elizabeth Flannery, Assistant United States Attorney, Office of the United States Attorney, Richmond, Virginia, for Appellee. ON BRIEF: Frank W. Dunham, Jr., Federal Public Defender, Alexandria, Virginia, Mary E. Maguire, Assistant Federal Public Defender, Carolyn V. Grady, Assistant Federal Public Defender, Richmond, Virginia, for Appellants. Paul J. McNulty, United States Attorney, Michael J. Elston, Assistant United States Attorney, Alexandria, Virginia, for Appellee.

Before TRAXLER and GREGORY, Circuit Judges, and R. BRYAN HARWELL, United States District Judge for the District of South Carolina, sitting by designation.

Vacated and remanded by published opinion. Judge TRAXLER wrote the opinion, in which Judge GREGORY and Judge HARWELL joined.

OPINION

TRAXLER, Circuit Judge.

Appellants Jenny Nunez and Carlos Nunez challenge their convictions and sentences for conspiracy to possess with intent to distribute and distribution of cocaine and heroin, in violation of 21 U.S.C.A. § 846 (West 1999); possession with intent to distribute and distribution of cocaine and heroin, in violation of 21 U.S.C.A. § 841(a)(1) (West 1999) and 18 U.S.C.A. § 2 (West 2000); and attempted possession with intent to distribute cocaine and heroin, in violation of 21 U.S.C.A. § 846 and 18 U.S.C.A. § 2. We vacate and remand for retrial.

I.

The evidence at trial, viewed in the light most favorable to the government, see United States v. Burgos, 94 F.3d 849, 854 (4th Cir.1996) (en banc), reveals the following facts.

In October 2000, the Drug Enforcement Agency ("DEA") in Miami, Florida, received a tip that Hymie Acosta was smuggling cocaine and heroin from Colombia, South America, into the United States on food carts of airplanes landing at Miami International Airport and that Martha Gray was distributing the drugs for Acosta in the Miami area. During surveillance, Gray and Acosta were observed at the home of Carlos and Jenny Nunez, who were married and living in the Miami area. Following standard operating procedures, the Miami DEA entered the Nunezes into the DEA indexing computer program.

Martha Gray was arrested in April 2001, following the seizure of a shipment of drugs from a flight that landed in Miami. She agreed to cooperate with authorities in May 2003. Gray testified she had approached Acosta for a job after she was laid off by American Airlines and began to collect and deliver money for him. She later became involved with the drug smuggling operation as well. Acosta would notify Gray of the flight carrying the smuggled drugs and the expected amount, and Gray would contact Adnan Shwani and Willie Floyd, their contacts at the airport. Floyd unloaded the drugs from the food carts and delivered them to Shwani, who delivered the drugs to Gray. Gray distributed the drugs pursuant to Acosta's instructions and collected money. Gray testified that she delivered drugs to Jenny and Carlos Nunez for Acosta.

DEA agents in Washington, D.C., began investigating drug trafficking activities of Kerry Bond and his associates, including Reginald Robinson, in the Washington area in the year 2000. This investigation led to the arrest of several individuals who, in the course of cooperating with authorities, identified Guillermo "Willie" Padrone, from Miami, Florida, as their drug source.

Padrone was arrested in 2002 and also began to cooperate with authorities. He identified Carlos Nunez as his supplier for powder cocaine and heroin. Padrone testified that, following a short hiatus from his former drug-dealing activities, he began dealing drugs in the fall of 2000 and reconnected with Carlos Nunez as his supplier.¹ He and other witnesses testified regarding the involvement of Carlos and Jenny Nunez in the distribution scheme. When the Washington DEA agents indexed the Nunez name in the course of their investigation, also via standard procedure, the name surfaced as having been previously indexed by the Miami DEA. This led to a cooperative investigation.

On August 12, 2003, Carlos and Jenny Nunez were arrested in Miami on a federal arrest warrant issued from the Eastern District of Virginia. Jenny, who speaks Spanish, was advised of her Miranda rights in her native language and agreed to submit to questioning by DEA agents Mary Toomey and Oscar Negron. Agent Toomey speaks English, but Agent Negron's native language is Spanish. Thus, Agent Negron translated Agent Toomey's questions and Jenny's answers during the questioning. On August 14, 2003, Agent Toomey prepared a written Report of Investigation, (the "Report") from notes taken by her from Agent Negron's translation. The Report implicates Carlos and Jenny Nunez, along with other coconspirators, in the Colombia-to-Washington drug distribution conspiracy.

Carlos thereafter filed a motion to sever his trial from Jenny's trial, arguing that her statement could not be redacted in a way that the jurors would not know that it implicated him and, therefore, that it would run afoul of his Sixth Amendment rights. Jenny filed a motion to suppress introduction of her statement, arguing that it was not voluntarily given. The court denied both motions and ruled that the introduction of a redacted statement would sufficiently protect Carlos.

The government prepared a redacted statement and subpoenaed Agent Toomey from Florida to introduce it at trial. On the first day of trial, however, the Supreme Court issued its opinion in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which held that the introduction of out-of-court testimonial statements is barred by the Confrontation Clause unless the witness is unavailable and the defendants had a prior opportunity to cross-examine the witness.² See id. at 68, 124 S.Ct. 1354. The following day, the appellants moved to bar Agent Toomey from offering the Report into evidence because it was not a first-hand account of Jenny's statements. In light of Crawford, the district court reversed its earlier ruling, holding that only Agent Negron could testify as a fact witness regarding Jenny's statements during the interview. The statement prepared in English by Agent Toomey from her notes of the translation was a hearsay statement which would run afoul of the Confrontation Clause. Thus, Agent Negron offered testimony regarding Jenny's statements, but the Report was not admitted.

After jury deliberations had begun in the trial, the jury sent a note to the court advising it was unable to locate the Report of Jenny's interview. Although the Report had not been introduced into evidence, it had been referred to during the testimony of Agent Negron and Jenny Nunez. Upon prompting by the district court, the government then moved to reopen the evidence to allow belated admission of the previously-excluded Report. Because "[e]xtensive use of [the Report] was made throughout the examination," the district court noted that it "would have let it go to the jury had [the government] requested." J.A. 951-52. Accordingly, the district court ruled that it would "re-open the evidence and let it in." J.A. 952. The Report summarizing the interview of Jenny was then submitted to the jury in its original unredacted form without affording either Jenny or Carlos an opportunity to present additional testimony or argument. Both appellants objected to the belated admission of this evidence and moved for a mistrial, which was denied.

The jury thereafter returned a verdict convicting Carlos and Jenny of conspiracy to possess with intent to distribute and distribution of cocaine and heroin, possession with intent to distribute and distribution of cocaine and heroin, and attempted possession with intent to distribute cocaine and heroin. Carlos and Jenny moved for a new trial, arguing that the district court improperly reopened the evidence to admit the Report. The motions were denied. Carlos was sentenced to 188 months imprisonment, and Jenny was sentenced to 151 months imprisonment. This appeal followed.

II.

We first address the appellants' contention that the district court abused its discretion when it failed to give their requested jury instruction regarding multiple conspiracies. The Nunezes contend that the evidence demonstrated the existence of two distinct distribution conspiracies, one in the Miami area (involving Acosta, Gray, Shwani, and Floyd), and a separate one in the Washington area (involving Padrone, Bond, and Robinson), and that they were therefore entitled to a multiple conspiracy instruction. We disagree.

"A multiple conspiracy instruction is not required unless the proof at trial demonstrates that appellants were involved only in [a] separate conspirac[y] unrelated to the overall conspiracy charged in the indictment." United States v. Squillacote, 221 F.3d 542, 574 (4th Cir.2000) (citations and internal quotation marks omitted). The focus of a conspiracy is the single-mindedness to achieve a particular goal. Generally, "[a] single conspiracy exists where there is one overall agreement, or one general business venture. Whether there is a single conspiracy or multiple conspiracies depends upon the overlap of key actors, methods, and goals." Id. (citation and internal quotation marks omitted). However, "one may be a member of a conspiracy without knowing its full scope, or all its members, and without taking part in the full range of its activities or over the whole period of its existence." United States v. Banks, 10 F.3d 1044, 1054 (4th Cir.1993). Also, it is not necessary that the...