U.S. v. Ramos

• Citation: 666 F.2d 469
• Decision Date: 22 January 1982
• Docket Number: No. 80-5947,80-5947
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Felix RAMOS, Edward Marti, Renee Marti, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 469

666 F.2d 469

UNITED STATES of America, Plaintiff-Appellee, v. Felix RAMOS, Edward Marti, Renee Marti, Defendants-Appellants.

No. 80-5947.

United States Court of Appeals,

Eleventh Circuit.

Jan. 22, 1982.

John L. Lipinski, Miami, Fla., for Ramos.

James P. Ryan, North Miami, Fla., for E. Marti and R. Marti.

Caroline Heck, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before FAY, ANDERSON and CLARK, Circuit Judges.

FAY, Circuit Judge:

On October 9, 1980, Eddy Hidalgo, Edward Marti, Renee Marti and Felix Ramos were convicted of drug violations stemming from their sale of approximately 80,000 tablets containing the controlled substance, diazepan. ¹ Challenging, inter alia, the indictment as vague, the conspiracy count as duplicitous and the evidence as insufficient, all of the above defendants save Hidalgo seek reversal. Ramos and the Martis will, no doubt, find our conclusions to be a bitter pill indeed: Having accorded the appellants the most careful consideration of their objections, we hereby affirm the conviction of each.

I. The Scenario

We preface our analysis with a look at the pertinent facts adduced at trial:

At approximately noon on March 14, 1980 in Lum's Restaurant in southwest Miami, a confidential government informant introduced Agent Robert Mazzilli of the Drug Enforcement Administration (DEA) to Eddy Hidalgo. Hidalgo informed Mazzilli that he and "his people" wished to sell 200,000 "ludes," the vernacular term for methaqualone, often referred to as Quaaludes. R. 2 at 108-09. Hidalgo told the agent that for $100,000 he would be able to purchase 80,000 pills, at a price of $1.25 each. Agent Mazzilli then led Hidalgo outside to a parked undercover vehicle, where he was shown $100,000 in government funds. After the men returned to the restaurant, Hidalgo assured Agent Mazzilli that the "ludes" were "lemon 714's" ² of excellent quality. R. 2 at 112. He suggested to the agent that following their initial deal, Hidalgo and "his people" could continue to supply Mazzilli with 80,000 pills every two weeks, at a reduced price. Hidalgo revealed that the source of his supply was a father and son team. R. 2 at 113.

Subsequent to their meeting at Lum's, the men separated. Agent Mazzilli returned to the DEA's Miami District Office; Hidalgo was followed by DEA surveillance agents to a Miami residence, outside of which Edward Marti was observed seated in a brown car watching the area closely.

At 1:45 p. m., Hidalgo contacted Mazzilli by telephone regarding the proposed drug sale. At 2:30 p. m., Mazzilli received another phone call from Hidalgo and a second individual who later identified himself as "the man...with the merchandise." R. 2 at 124. At 2:35 p. m., Hidalgo initiated yet a third telephone conversation with the agent, to finalize the delivery plans. All three telephone communications were recorded on cassette tape by Agent Mazzilli.

In accordance with their arrangements over the phone, Agent Mazzilli met Hidalgo and Edward Marti at 4:20 p. m. in the parking lot of a Burger King restaurant on 57th Street and 7th Avenue in southwest Miami. As Agent Mazzilli pulled into the lot, he observed both Hidalgo, who was vacuuming a white Pontiac Grand Prix car, and Marti, who was in a telephone booth placing a call, at an adjacent gas station. Hidalgo approached Agent Mazzilli, and the two men entered the restaurant. They were joined several minutes later by Edward Marti. Hidalgo introduced Mazzilli to Edward, who identified himself as the second individual with whom the agent had spoken on the phone earlier that day. Marti told Agent Mazzilli that for the past five years he had been bringing Quaalude tablets in lots of 100,000 to New York City, where he would sell them for $1.65 each. Marti then informed Mazzilli that he had just telephoned his source, who would be delivering the "ludes" momentarily. After pointing out to Mazzilli a blue late model Cadillac Coupe de Ville which was entering the parking lot, Marti introduced Mazzilli to its driver-later identified as his father, Rene Marti-whom Edward referred to as "his man." R. 2 at 138. The agent was then introduced to Felix Ramos, the operator of a red Gucci Cadillac which had followed the blue Cadillac into the lot. During a discussion with Hidalgo, Ramos and Edward Marti regarding the "ludes, stuff, merchandise, pills and tablets," R. 2 at 137 Rene pointed to the trunk of the red Cadillac, indicating that the pills were inside. At Mazzilli's request, Ramos gave him the keys to the red car. As the operator of the blue car drove off, Mazzilli drove the red Cadillac in the opposite direction to a nearby U-Totem store. Hidalgo and Felix followed him there in the white Grand Prix. After their arrival in the U-Totem parking lot, Agent Mazzilli requested and received Ramos's permission to inspect the merchandise, consisting of 80,000 tablets located in the trunk of the red Cadillac. Agent Mazzilli looked into the trunk, where he saw the tablets in boxes. He signaled the surrounding agents, who immediately closed in on the three defendants and arrested them.

A forensic chemist identified the contents of each tablet as 78 milligrams of diazepan, a controlled substance which is frequently substituted for methaqualone and which constitutes the active ingredient in valium. R. 3 at 372. Each tablet bore the stamp, "lemon 714," which represents the firm and markings for Quaaludes. R. 2 at 372.

The following day, Edward's "man," the driver of the blue Cadillac, was arrested at his residence. He was identified as Edward's father, Rene Marti.

On March 21, 1980, a grand jury indicted the Martis, Ramos and Hidalgo for conspiring to possess with intent to distribute and to distribute methaqualone, in violation of 21 U.S.C. § 846, as well as for possession and distribution of diazepan, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Hidalgo and Edward Marti were additionally indicted for using a communication facility to commit a felony, in violation of 21 U.S.C. § 843(b).

The defendants' motions to dismiss the indictment were denied, and a jury convicted them as charged. Ramos and the Martis appeal from the denial of their motions to dismiss, as well as from their convictions, on a variety of grounds. We turn now to a separate examination of each.

II. The Legal Challenge

A. Duplicity

The appellants join in seeking to strike as duplicitous the initial count of the indictment, which charges them with conspiring to possess and to distribute methaqualone. The error of duplicity is present where more than a single crime is charged in one count of an indictment. See, e.g., United States v. Goodman, 285 F.2d 378, 379-80 (5th Cir.), cert. denied, 366 U.S. 930, 81 S.Ct. 1651, 6 L.Ed.2d 389 (1961). Count One of the instant indictment charges but one crime-conspiracy-which has two goals-possession and distribution. The appellants claim that the charge of dual conspiratorial objectives renders Count One duplicitous. Prevailing legal principle, however, refutes their contentions. In the seminal case of Braverman v. United States, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23 (1942), the Supreme Court of the United States cogently explicated what remains a firm tenet of our criminal law:

The allegation in a single count of a conspiracy to commit several crimes is not duplicitous, for "The conspiracy is the crime, and that is one, however diverse its objects." Frohwerk v. United States, 249 U.S. 204, 210 (39 S.Ct. 249, 252, 63 L.Ed. 561); Ford v. United States, 273 U.S. 593, 602 (47 S.Ct. 531, 534, 71 L.Ed. 793); United States v. Manton, 107 F.2d 834, 838 (2nd Cir.) ... The single agreement is the prohibited conspiracy, and however diverse its objects it violates but a single statute ... For such a violation, only the single penalty prescribed by the statute can be imposed.

Id. at 54, 63 S.Ct. at 102. See also United States v. Avila-Dominguez, 610 F.2d 1266 (5th Cir. 1980).

By way of explanation, we note the distinction between the present indictment and that invalidated as duplicitous in Siegel v. United States, 484 F.Supp. 553 (S.D.Fla.1980). Count One of the Siegel indictment charged conspiracy to import cocaine and marijuana. Since the accusation involved charges under two distinct statutes carrying separate penalties and involving different evidence, the count was stricken as duplicitous. Such is not the case here, where the appellants were charged with and sentenced for violating one statute only, 21 U.S.C. § 846, and where the required proof was limited to a lone agreement among the members of one group to consummate a single transaction: the sale of methaqualone to Agent Mazzilli. No allegation was made nor evidence introduced which possibly could be construed to indicate the existence of more than one conspiracy. Given that the indictment properly charged a single illicit agreement under 21 U.S.C. § 846, the court finds the appellants' suggestion of duplicity totally without merit.

B. Sufficiency of the Indictment

The appellants continue their attack on the indictment in toto, contending that it suffers from vagueness and lack of specificity. Clearly, the sixth amendment guarantees every defendant the right to be informed of the government's accusation against him. Russell v. United States, 369 U.S. 749, 761, 82 S.Ct. 1038, 1045, 8 L.Ed.2d 240 (1962). The prevailing test relied upon by courts seeking to safeguard this constitutional protection was articulated in Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1942):

(A)n indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.

Id. at 117, 94 S.Ct. at 2907.

The appellants...