U.S. v. Arbolaez
| Decision Date | 01 June 2006 |
| Docket Number | No. 05-11217.,05-11217. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Elio Jesus ARBOLAEZ, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Carol E. Herman, Anne R. Schultz, Asst. U.S. Atty., Madeleine R. Shirley, Miami, FL, for U.S.
Appeal from the United States District Court for the Southern District of Florida.
Before BIRCH and MARCUS, Circuit Judges, and NANGLE*, District Judge.
Elio Jesus Arbolaez appeals the district court's final judgment of conviction, sentence, and final order of forfeiture subsequent to a jury's finding him guilty as to one count of conspiracy to possess with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1), and one count of corrupt alteration, destruction, and mutilation of a cellular telephone with the intent to impair that phone's integrity and use in an official proceeding, in violation of 18 U.S.C. § 1512(c)(1). Although we find the district court erred in admitting hearsay testimony of a co-defendant and in admitting an incriminating comment made by Arbolaez without first requiring the government to show that he had waived his Miranda1 rights, neither constituted reversible error in this case. We further find that Arbolaez failed to make the substantial preliminary showing necessary to mandate a Franks2 hearing with regard to the validity of the affidavit supporting the search warrant for his residence. Finally, we find that the district court erred in precluding defense counsel from presenting evidence or argument in connection with the forfeiture portion of the trial and that the error was not harmless. Accordingly, we AFFIRM the conviction and sentence, but REMAND for further proceedings as to forfeiture consistent with this opinion.
In the course of investigating certain marijuana trafficking originating in the Miami area, agents of the United States Drug Enforcement Administration ("DEA") searched the residence of Reinaldo Perez. While they were searching, Arbolaez arrived in a Hummer. He told the agents that he owned the property and that he had stopped at the house because he had seen many cars parked there and because Perez owed him rent. Agents asked Arbolaez for his consent to search a shed on the property. Arbolaez responded that he "didn't want anything to do with this." R5 at 271.
After Arbolaez left, Perez consented to a search of the shed, which yielded equipment commonly used in hydroponic cultivation of marijuana. Perez initially asserted that the equipment belonged to someone named Rodriguez who was in jail. Perez was arrested and, based in part on information he allegedly provided after his arrest, agents obtained and executed a search warrant for Arbolaez's residence. The post-arrest information allegedly provided by Perez included general statements about Arbolaez's involvement in the trafficking and detailed descriptions of where certain evidence could be found in Arbolaez's house. He also allegedly provided a map reflecting the location of items.
During the search, a narcotics-detecting canine alerted to several specific areas. In the master bedroom, agents found, among other things, a loaded handgun, used plastic bags bearing the numbers "36" and "15,720," a sheet of instructions in Spanish for hydroponic plant cultivation, and quantities of U.S. currency in a dresser drawer and sealed in a plastic water bottle. R4 at 67-68. In the spare bedroom and bathroom, they found boxes of plastic food storage bags like the used ones found in the master bedroom, rubber bands, tape, and a large diaper bag containing 8.6 grams of marijuana residue, commonly known as "shake." Id. at 74. In the kitchen, they found a copy of the criminal complaint against a co-defendant, Gilford Alvarez, that had recently been filed in federal court. In the Hummer, they found duffle bags matching those containing drugs that were seized from Alvarez, a vacuum sealing machine, more boxes of plastic bags, and a bag of rubber bands. Agents found a total of four cellular telephones: two in the residence, one in the Hummer, and one in Arbolaez's pocket. The government emphasized at trial that everything had been exactly where Perez had allegedly said it would be.
Agents advised Arbolaez of his Miranda rights before conducting the search and told him the nature of the investigation and why they were at his house. In the course of the search, the police presented him with each item being seized, to gauge his reaction. Arbolaez reportedly became increasingly agitated. Generally, his reaction was to look away from the evidence being shown him and deny any knowledge of it. See R5 at 186. When one agent, Agent Crispin, accused him of lying about this, Arbolaez commented in Spanish to the officer sitting with him that "15 years ago he would have killed [Agent Crispin]" for such an accusation. Id. at 189. Toward the end of the search, Agent Crispin approached Arbolaez with two cell phones. He asked Arbolaez to identify which was his and which was his wife's. Arbolaez grabbed one of the phones, "ripped [it] apart and then he smashed it on the ground and tried to step on it." R4 at 79. This made it impossible to retrieve numbers and other information through the phone's display. Agents then arrested Arbolaez and took the phone from his pocket. Telephone records later showed close to 150 calls had been made during May of that year between a phone found in the Hummer and a phone belonging to someone else confirmed to have been involved in the trafficking.
Arbolaez was indicted on three counts: conspiracy with co-defendants Gilfred Alvarez, Reinaldo Perez, and others to possess marijuana with intent to distribute it (Count 1); possession of marijuana with intent to distribute it (Count 2); and corrupt alteration, destruction, and mutilation of a cellular telephone with the intent to impair that phone's integrity and use in an official proceeding (Count 3). The indictment also included a forfeiture allegation with regard to property that (1) constituted proceeds obtained as a result of the violations or (2) was used or intended to be used to facilitate the violations. Specifically to be forfeited were a 2003 Hummer automobile and Arbolaez's residence located at 19895 S.W. 184th St. in Miami, Florida.
Arbolaez's codefendants pled guilty to the charges against them and Arbolaez proceeded to trial alone. Just before trial, the government filed two supplemental responses to a standing discovery order. The first put Arbolaez on notice for the first time that the government planned to use the statement he had made about killing Agent Crispin during the search of his residence as an inculpatory statement. R1-48. The second stated that:
According to Reinaldo Perez' defense counsel, Mr. Perez now denies providing to agents the statements attributed to him in the complaint that implicate co-defendant Elio Jesus Arbolaez in the conspiracy. Mr. Perez also believes that Mr. Arbolaez will have him murdered if Mr. Perez testifies for the government.
R1-51. Arbolaez then filed motions to suppress both his statement about Agent Crispin and the evidence gained by way of the search warrant obtained based on Perez's statements. Although the district court heard argument from both parties on the motions, there was no evidentiary hearing on either issue. The court reserved ruling on both motions until "the appropriate time during the trial." R2 at 6. The statements allegedly made by Perez underlying the search warrant affidavit, the evidence obtained through the search of Arbolaez's house, and Arbolaez's statement about killing Agent Crispin were all admitted into evidence in the course of the trial. Perez did not testify.
A jury found Arbolaez guilty as to Counts 1 and 3, but not guilty as to Count 2. The court then immediately instructed the jury as to the forfeiture issue, and sent the jurors out to deliberate, over the objection of Arbolaez's counsel that he wanted to put on evidence and present arguments.3 The jury rendered a criminal forfeiture verdict finding that the 2003 Hummer and the residence had been used or were intended to be used to facilitate Arbolaez's commission of Count 1. The district court then ordered a preliminary order of forfeiture as to both properties. Arbolaez moved for a new trial. The district court denied the motion.
On 23 February 2005, the district court sentenced Arbolaez to concurrent terms of 28 months imprisonment to be followed by two years of supervised release and required him to pay a $200 special assessment. The court also issued a judgment and commitment order, ordering forfeiture of Arbolaez's interests in the Hummer and the residence.4 Arbolaez timely filed his appeal on 2 March 2005.
On appeal, Arbolaez argues that the district court committed reversible error when it (1) admitted statements from a non-testifying co-conspirator under Fed. R.Evid. 801(c) as background evidence; (2) admitted a statement made to police in the course of the search of Arbolaez's home, without first requiring the government to establish that Arbolaez had affirmatively waived his Miranda rights; (3) refused to hold a pre-trial Franks hearing as to the sufficiency of an affidavit in support of a warrant for the search of Arbolaez's residence when the witness who allegedly gave the statements upon which the warrant was granted denied having made those statements after the warrant was executed; and (4) refused to allow Arbolaez's counsel to present evidence and argument at the forfeiture phase of the trial.
Arbolaez first argues that the trial court erred in allowing Agent Crispin to recount the statements allegedly made by Perez after his arrest regarding Arbolaez's participation in the trafficking...
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