U.S. v. Ariza-Ibarra

• Decision Date: 20 September 1979
• Docket Number: Nos. 78-1125,78-1229,ARIZA-IBARR,D,s. 78-1125
• Citation: 605 F.2d 1216
• Parties: 5 Fed. R. Evid. Serv. 523 UNITED STATES of America, Appellee, v. Teodoroefendant, Appellant. UNITED STATES of America, Appellee, v. Alvaro RODRIGUEZ AMADOR, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 1216

605 F.2d 1216

5 Fed. R. Evid. Serv. 523

UNITED STATES of America, Appellee, v. Teodoro ARIZA-IBARRA, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Alvaro RODRIGUEZ AMADOR, Defendant, Appellant.

Nos. 78-1125, 78-1229.

United States Court of Appeals, First Circuit.

Argued April 3, 1979.

Decided Sept. 20, 1979.

Michael A. Young, New York City, with whom Goldberger, Feldman & Dubin, New York City, was on brief for appellant Teodoro Ariza-Ibarra.

Carlos Perez Olivo, San Juan, P. R., on brief for appellant Alvaro Rodriguez Amador.

Justo Arenas Fernandez, Asst. U. S. Atty., San Juan, P. R., with whom Julio Morales Sanchez, U. S. Atty., San Juan, P. R., was on brief for appellee.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

Teodoro Ariza-Ibarra, a Colombian, and Alvaro Rodriguez Amador, a Spanish citizen resident in Puerto Rico, were convicted by a jury in the federal district court of Puerto Rico of conspiracy to import 50,000 pounds of marijuana and 25 kilos of cocaine from Colombia into the United States. See 21 U.S.C. §§ 952(a), 963.

As portrayed by the prosecution, Ariza was a Colombia-based supplier of drugs, while Rodriguez who dealt in vessels suitable for drug smuggling was one of his lieutenants. Both defendants were arrested in the afternoon of January 31, 1978 at the international airport in San Juan. Their capture followed an undercover operation in which Drug Enforcement Administration (DEA) agents and an informer posed as would-be drug purchasers. Meeting with defendants on January 30 and 31, the undercover operatives made final arrangements to procure from them a shipment of Colombian cocaine, with a marijuana deal to follow. Before any part of the transaction was consummated defendants went to the airport; fearing that they were planning to depart, DEA agents arrested them. Defendants were not charged with commission of any substantive offense, but rather with the conspiracy to import that was allegedly hatched in the presence of the undercover operatives.

The prosecution's case was based largely on the testimony of a witness named Fortunato Jorge, a DEA agent stationed in Puerto Rico. Jorge testified that he learned about Ariza from an informer named Alberto Larain Mestre, with whom he had worked in the past. Beginning on November 30, 1977, Larain and Jorge, operating from Puerto Rico, undertook a series of telephone inquiries to Ariza and certain associates in Colombia and Miami, seeking to initiate meetings at which purchases of cocaine and marijuana could be arranged. Tapes of these calls, recorded by Jorge, were placed in evidence to corroborate Jorge's testimony of these initial contacts. ¹ Jorge testified that face-to-face meetings, at which he as well as Larain were present, eventually also occurred, in Miami and Puerto Rico. ² He recounted a meeting in Puerto Rico on board the vessel Wendy B, at which Rodriguez indicated his readiness to furnish drugs in concert with Ariza. The Wendy B, which was being reconditioned with a new engine and larger fuel tanks, and other boats were to be made available to transport the drugs to Puerto Rico. Jorge also testified that he and Larain met with Ariza in Miami and Puerto Rico. They agreed that Ariza would furnish, with Rodriguez' assistance 25 kilos of cocaine at $25,000 a kilo, with a separate commission for Rodriguez. While this deal encompassed cocaine only, Jorge testified to an understanding that Ariza would later furnish 50,000 pounds of marijuana for $6,000,000. Ariza insisted on a $300,000 down payment for the cocaine, to which Larain and Jorge finally agreed. It was while Larain and Jorge were stalling the delivery of the down payment that defendants went to the airport where they were arrested.

The tapes that went into evidence were of the preliminary telephone conversations with Ariza and his associates aimed at setting up the personal encounters later realized. The taped conversations were without express mention of drugs, but did give support to Jorge's testimony as to these preliminary contacts with Ariza. It was natural that Ariza and his associates would be wary of mentioning the true nature of the business on the telephone. Guarded references to "coffee" and "furniture" could well have been cover words for other substances, and the conversations were so deliberately cryptic as to suggest illicit rather than ordinary commercial dealings. Nonetheless, the tapes by themselves were ambivalent as to what defendants were up to. It was Jorge's testimony of what defendants said at the later, unrecorded, meetings that provided the government with its basic case.

Jorge's associate, the informer Larain, was not called as a witness by either the government or the defense. ³ But while Jorge was the only witness to testify to defendants' criminal conversations, the prosecution did introduce other evidence, in addition to the tapes, to support its picture of Ariza as a major drug dealer. Another agent testified that ten cashier's checks totalling the sum of $5,000,000 were found concealed in Ariza's left shoe when he was arrested. These were placed in evidence, and the prosecution asked the jury to infer that Ariza intended to use this money to procure drugs such as he had agreed to sell to the undercover operatives. A third DEA agent, Rivera, testified that he had "known of" defendants since November 1977, that he had met Rodriguez in early January 1978 while acting as an undercover agent with Jorge, that he first saw Ariza on January 30 and that he helped arrest defendants on January 31. ⁴ An officer of the Puerto Rican bank that issued the cashier's checks testified that Ariza came there on November 23, 1977 and opened an account, ostensibly to receive proceeds from dealings in coffee and cattle. The banker testified that deposits in excess of $5,000,000 were made prior to January 30, 1978 with cash brought into the bank in suitcases. On January 30 most of the money was converted into the ten $500,000 cashier's checks found in Ariza's shoe the next day. Two other witnesses testified as to extensive repairs that had been made to the Wendy B that would have increased her cruising range and seaworthiness considerably.

The government also placed in evidence, over objection, certain documents from the files of the Hotel Excelsior in Puerto Rico reflecting that Ariza was a guest there for several nights in November and December 1977 and in January 1978, and that in November 1977 messages for him were left by someone who identified himself as Larain.

Ariza called only one witness: a Puerto Rican lawyer whom he had hired to represent him in tax proceedings initiated by the United States after discovery of the $5,000,000. Based on a visit to Colombia, this witness testified that Ariza owned ranch lands, cattle and other property there valued at many millions. It was the witness's understanding that the foundation of Ariza's wealth was legitimate business activity in cattle, coffee and the like. Given the lawyer's lack of specific information about Ariza's business dealings, however, the jury could have thought that the sources of the $5,000,000 found in Ariza's possession and of his wealth in Colombia were little clarified by this witness.

Against this background, we now consider appellants' objections. They do not deny the legal sufficiency of the evidence to convict, but assert that errors were made, especially in the admission of prejudicial evidence.

I. Reliability, Past Activities and Statements Attributed to the Non-Witness Informant Larain

Defendants' chief objections on appeal are that the court erred in allowing Jorge, in the course of his testimony, to testify to Larain's purported reputation for reliability. This, together with Jorge's relating of certain information coming from Larain, is said to have been tantamount to making Larain, although absent and hence unavailable for cross-examination, a second government witness to the conspiracy itself.

A. Larain's reliability and hearsay statements identifying

defendants as drug dealers

Before trial, defendants moved to suppress the evidence found on their persons when they were arrested, asserting that there was no probable cause to arrest them. Agent Rivera, who made the decision to arrest, outlined the information that caused him to do so, cited Larain as a major source of that information, and quite properly testified to Larain's reliability in other investigations in order to demonstrate that the agents had good reason to credit him. The court sustained the arrests and the seizures.

So far, all procedures were correct. Unfortunately, however, after the trial began, the prosecution decided once again to pursue the issue of the informer's reliability, this time in front of the jury. In his opening statement the prosecutor said:

"Now, you will hear during the course of this case that there was an informant. His name is Alberto Larain Mestre. This informant you will hear from the undercover agent, Mr. Fortunato Jorge, who will testify was recruited originally in Spain and he has been working continuously thereafter with the Drug Enforcement Administration for the last seven years. In order that you may gauge the reliability of this informant we will bring evidence to you that this informant had given evidence in other cases, has developed other cases; that the undercover agent who has been working with him had four cases in Europe."

Defendants objected to this statement and to the prosecutor's expressed intention to introduce evidence of the informant's reliability on the ground that it was both prejudicial and irrelevant, a finding of reliability having been made when probable cause to arrest was established; the question of reliability was, they argued, a question for the judge, not the jury. The court overruled the objection, but instructed the jury that the cases on which the agent and the...