U.S. v. Vera

• Decision Date: 04 April 1983
• Docket Number: Nos. 81-5148,81-5184,s. 81-5148
• Citation: 701 F.2d 1349
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ray VERA, Luis Romero, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Arturo POSADA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1349

701 F.2d 1349

UNITED STATES of America, Plaintiff-Appellee, v. Ray VERA, Luis Romero, Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee, v. Arturo POSADA, Defendant-Appellant.

Nos. 81-5148, 81-5184.

United States Court of Appeals, Eleventh Circuit.

April 4, 1983.

Raymond J. Takiff, Coral Gables, Fla., Jerry W. Burford, Miami, Fla., for Romero.

Marc Cooper, Miami, Fla., for Vera.

Donald L. Ferguson, Miami, Fla., Steven Kirou, Coral Gables, Fla., for Posada.

Deborah Watson, Appellate Section Crim. Div., Dept. of Justice, Washington, D.C., for the U.S.

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

Before HILL and ANDERSON, Circuit Judges, and SCOTT ^*, District Judge.

CHARLES R. SCOTT, District Judge:

Following a jury trial in the United States District Court for the Southern District of Florida, appellants Arturo Posada, Luis Romero and Ray Vera were each convicted of conspiracy to distribute quaaludes in violation of 21 U.S.C. Sec. 846, possession with intent to distribute quaaludes in violation of 21 U.S.C. Sec. 841(a)(1) and distribution of quaaludes in violation of 21 U.S.C. Sec. 841(a)(1). In addition, appellant Romero was convicted of possession with intent to distribute hashish in violation of 21 U.S.C. Sec. 841(a)(1) and appellant Vera was convicted of possession of hashish in violation of 21 U.S.C. Sec. 844. ¹

Co-defendants Diego Adamo, Peter Riccardi and Saleh Hassan were charged with conspiracy to distribute quaaludes in violation of 21 U.S.C. Sec. 846. ² Riccardi pled guilty, Adamo was acquitted, and Hassan failed to appear for trial.

Facts

On July 23, 1980, Drug Enforcement Administration ('DEA') undercover agent Richard Fiano and confidential informant Bobby Kulch met with co-defendant Riccardi at a restaurant in Miami, Florida. Riccardi told Fiano that appellant Romero had approximately 400,000 quaalude tablets for sale at a price of 75 cents per tablet. This price included a five cent per tablet commission for Riccardi and Kulch. Fiano informed Riccardi that he wanted to purchase the drugs and could get the money in a couple of hours. After making several unsuccessful attempts to telephone Romero, Riccardi received a telephone call in the restaurant lounge. Riccardi then told Fiano and Kulch to follow him to the Lucky Travel Service.

Upon arriving at the travel agency, Riccardi, Fiano and Kulch went to a room in the back of the office where they met appellant Romero and co-defendant Hassan. Hassan indicated that he would act as an interpreter for Romero because Romero was not fluent in English. Fiano asked Romero how many quaalude tablets were available. Romero left the room to make a telephone call and returned, stating "400,000" in Spanish. Fiano then asked how the drugs would be delivered. Hassan explained that Fiano would have to provide a closed van to be used to pick up the quaalude tablets. Hassan would deliver the quaalude tablets in the van to a prearranged location where a person designated by Fiano could inspect the tablets. The person designated by Fiano would then telephone Fiano at the travel agency to authorize payment for the drugs. Fiano, Hassan and Romero agreed to consummate the transaction on the following day.

At approximately 12:30 P.M. on July 24, 1980, Hassan telephoned Fiano and told him to come to the Lucky Travel Service. Fiano and Kulch drove to the travel agency and were followed by DEA undercover agent Charles Gardner in an unmarked DEA van. Upon arriving at the travel agency, Fiano and Kulch met with Riccardi, Hassan, Romero and co-defendant Adamo in the back room. Fiano stated that he had selected the Air Park Shopping Center as the delivery site. Fiano then showed Hassan the money and introduced him to agent Gardner, who was waiting outside by the van. Agent Gardner was to inspect the drugs at the delivery site and then call Fiano at the travel agency.

Hassan indicated that it would take approximately two hours to complete the delivery. He explained that he would pick up some of the "stuff" at a "warehouse" and then would meet with Romero to collect the remainder of the load. Adamo told Fiano that he should call the travel agency at 2:30 P.M.

Fiano then walked outside and waited by the van with agent Gardner. Approximately 40 minutes later, Fiano walked back inside the travel agency to determine the cause for the delay. Fiano saw appellant Vera together with Hassan, Adamo and Romero in the back room. Vera and Romero were conversing in Spanish. Fiano could not understand what they were saying. Hassan informed Fiano that there was a slight delay. Fiano then went back outside to wait with Gardner.

At approximately 2:20 P.M., Vera and another individual left the travel agency in Vera's Corvette and drove to a Burger King restaurant located in the Air Park Shopping Center. Shortly thereafter, Hassan joined agent Gardner in the DEA van and drove to the Air Park Shopping Center. Hassan left Gardner at a bank of telephone booths in the shopping center and then parked the van next to Vera's Corvette near the Burger King restaurant. After a brief conversation, Hassan and Vera left the shopping center. Vera was driving his Corvette and Hassan was following in the van.

After driving several miles and briefly stopping at an apartment complex, Hassan and Vera stopped at another shopping center where they exchanged vehicles. Vera then drove the van to appellant Posada's house, leaving Hassan at the shopping center with the Corvette. Vera parked the van next to a shed located by the house. After a brief conversation, Vera, Posada and a third individual entered the shed.

Approximately 20 minutes later, Vera and Posada emerged from the shed carrying a box measuring approximately three feet in width and one and a half feet in height which they loaded into the van. After loading another box of approximately the same size, Vera and Posada loaded several smaller boxes and two mattresses into the van. Vera then left in a red Toyota truck that had been parked in front of Posada's house and drove to the shopping center where Hassan was waiting. Shortly thereafter, Posada drove the van to the same shopping center and left the van with Hassan.

Hassan then drove the van to Romero's house and parked it next to the garage. About half an hour later, Romero arrived and assisted Hassan in loading several boxes measuring approximately one foot in width and one and a half feet in height from the garage into the van. Although Romero's house was under surveillance, the agents could not determine whether anything had been removed from the van at Romero's house. Hassan then drove the van to the Air Park Shopping Center where agent Gardner was waiting. Romero followed Hassan in another vehicle.

Agent Gardner entered the back of the van, opened two of the boxes and examined the tablets taken from the plastic bags inside the boxes. Gardner then telephoned agent Fiano at the Lucky Travel Service and informed him that the delivery had been completed.

DEA agents then arrested Hassan and Romero at the shopping center, and Adamo and Riccardi were arrested at the travel agency. Inside the van, the agents found two large boxes which were approximately the same size as the two large boxes placed in the van by Vera and Posada and eight smaller boxes. Each of the boxes contained quaalude tablets packed in plastic bags. Some of the boxes were "torn and broken," and a white powdery substance was seeping out of one of the large boxes. The agents found a total of 388,000 tablets in the boxes. The van also contained a broken bicycle tire rim, part of a box spring for a bed and a broken lamp.

Following his arrest and after being advised of his Miranda rights, Romero told DEA agent Armando Marin that there were more quaalude tablets and some hashish in his house. With Romero's consent, the agents searched his house and discovered a plastic bag containing quaalude tablets and a box containing 55 pounds of hashish. Later that evening, the agents arrested Vera and found 860 grams of hashish in his pants. The chemical composition of the hashish in Vera's possession and the hashish found in Romero's house was identical.

Voir Dire

Prior to impanelling the jury, the district court informed the prospective jurors of the allegations contained in the indictment and briefly instructed them on the presumption of innocence and the government's burden of proof. The court then conducted a general voir dire examination of the prospective jurors. Thereafter, the court allowed counsel to further question the jury panel.

Counsel for Romero and Adamo asked prospective juror Beth Fox whether she would "expect to hear both sides of the story, that of the government and that of the defendant." Miss Fox replied "Certainly, I would." ³ Defense counsel then moved to challenge Miss Fox for cause. The court denied the motion and restricted defense counsel from further questioning the prospective jurors as to their understanding of the law. However, the court permitted defense counsel to inquire into the background of the prospective jurors.

Immediately after denying defense counsel's motion to challenge Miss Fox for cause, the court instructed the jury as follows:

One of the principles is that each of the defendants is presumed by law to be innocent. And the law does not require a defendant to prove his innocence or present any evidence at all. They may rely entirely on what the government has presented. The government has the burden of proving each defendant guilty beyond a reasonable doubt. And if the government fails in that respect, you must return a verdict acquitting the defendant, as to any count which the government fails to meet its burden of proof.

The court then asked whether any of the prospective jurors were unwilling or unable to follow the court's instructions on the law. None of the prospective jurors responded affirmatively. Defense ...