740 F.2d 862 (11th Cir. 1984), 83-5072, United States v. Alonso
|Citation:||740 F.2d 862|
|Party Name:||UNITED STATES of America, Plaintiff-Appellee, v. Fabio ALONSO, Pedro Izaguirre, Robert Derringer, Julio Ojeda, Defendants-Appellants.|
|Case Date:||August 30, 1984|
|Court:||United States Courts of Appeals, Court of Appeals for the Eleventh Circuit|
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Lawrence N. Rosen, Miami, Fla. (Court-appointed), for Alonso.
Roy E. Black, Black & Furci, Miami, Fla., for Izaguirre.
Thornton, Rothman, Adelstein & Moreno, David Rothman, Miami, Fla., for Derringer.
Kravitz & Von Zamft, Michael L. Von Zamft, Hialeah, Fla., for Ojeda.
Stanley Marcus, U.S. Atty., Michael P. Sullivan, Jon May, Linda Collins-Hertz, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.
Appeals from the United States District Court for the Southern District of Florida.
Before HENDERSON and CLARK, Circuit Judges, and ATKINS [*], District Judge.
Albert J. HENDERSON, Circuit Judge:
Fabio Alonso, Pedro Izaguirre, Julio Ojeda and Robert Derringer, defendants-appellants, were charged along with other Dade County, Florida homicide detectives in a forty-count indictment alleging conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Secs. 1961-68, substantive RICO violations, various drug related crimes, civil rights violations and infractions of the federal income tax laws. After a four month trial in the United States District Court for the Southern District of Florida, a jury found the appellants guilty of a number of charges, acquitted them of others and was unable to reach a verdict on certain counts against Derringer. 1 On appeal, the appellants
allege numerous errors during the trial. We affirm.
A central figure in this case is Mario Escandar. Detectives Rafael Hernandez and Ojeda of the homicide section of the Metro-Dade County Public Safety Department arrested Escandar in 1977 for kidnapping. Escandar became friendly with Hernandez and Ojeda as well as with Detectives Alonso, Izaguirre, Derringer, Charles Rivas, George Pontigo and Charles Zatrapalek. The men often visited Escandar at his home after he was released on bond.
While Alonso and Ojeda were in his house, Escandar ingested cocaine in their presence. Ojeda received some of the drug and took it with him. Eventually many of the defendants began using cocaine supplied by Escandar or Melvin Adler, Escandar's associate. Escandar even gave them money and gifts and provided prostitutes for them.
During this period of time, the kidnapping charges against Escandar were still pending. In an effort to dispose of the case, Escandar sought Ojeda's help in reducing the penalty. In response to Escandar's inquiries, Ojeda assured him that he could receive a six month sentence without too much trouble. According to Escandar, he spent $500.00 to $1,000.00 a day on the parties for the officers in his quest for a light sentence. Ojeda told the prosecutor that Escandar was providing him with good contacts and information and that he did not want Escandar to spend much time in jail. Based on Ojeda's recommendations, Escandar, facing a maximum of life imprisonment, was sentenced to fifty-nine days in jail and five years probation.
The appellants ultimately participated in an illicit enterprise involving drugs and money. Because of the voluminous evidence of their illegal activities, it would not be practical to relate in detail here each of the transactions. However, examples of the various schemes employed by the officers are helpful to an understanding of the enormity of their operations.
One such scheme involved Armando Fiallo, Sr. The appellants had received information that Fiallo kept a large amount of cash and drugs in his apartment. As a pretext to gain entry into the apartment, they obtained an arrest warrant for another person supposedly living with Fiallo. Thirty pounds of marijuana and $62,735.00 in cash were confiscated and placed in the police property room. Fiallo was killed a week later. Izaguirre formulated a plan to
procure the money still in the property room and to divide it with the others. A release authorized by Derringer listed Carlos Fernandez as Fiallo's next of kin and Fernandez picked up the money from the property room custodian. Neither Magda Fernandez, Carlos' wife, nor Armando Fiallo, Jr. was aware that Fernandez was related to Fiallo. The officers claimed that Fernandez arrived after they searched Fiallo's apartment and stated that he owned the money. Yet there was no record of such a claim by Fernandez. Izaguirre admitted that he knew Fernandez, who worked with Izaguirre's brother-in-law at an automobile dealership, but denied any part in the theft of the money.
In yet another instance, Escandar set up a device to duplicate paper currency by which he supposedly transferred the image of a twenty or a hundred dollar bill onto a bleached one dollar bill. Instead, Escandar simply switched the money furnished him for paper. One of Escandar's victims, Raul Pascaul and his associates returned to Escandar's home after they discovered the theft. Ojeda was called for help. He and Alonso stopped Pascaul and discovered a gun and cocaine. They arrested Pascaul and the others. Despite the cooperative efforts of these officers, Escandar said it was enough that he had taken $50,000.00 from Pascaul and suggested to Ojeda that he tell the prosecutor that they had made an illegal search of Pascaul and his arrested friends. The charges were later dropped.
In October, 1978, Stacy Needles was killed while attempting to purchase 800 pounds of marijuana. The defendants found a large amount of cash in the trunk of Needles' car. Izaguirre deposited $33,700.00 in the property room. To retrieve the money, Izaguirre signed a release for attorney Roy Rodriguez, who purportedly was representing Yordy Hernandez, the supposed mastermind behind the marijuana purchase. Hernandez and Arvilla Needles, Stacy Needles' mother, however testified that they did not know Rodriguez. Hernandez said he never was represented by Rodriguez and had not received any money. Mrs. Needles had retained another attorney to procure her son's property.
The appellants also agreed to assist Escandar to steal money from Roy Tateishi by the money duplicating hoax. As part of the plan, Tateishi left Escandar's home to return in thirty minutes, but, worried about leaving his money with Escandar, insisted that Adler accompany him and his bodyguard. Ojeda and Zatrapalek stopped Tateishi's car and discovered cocaine and currency. All three men were arrested. Ojeda gave Tateishi a receipt for $12,000.00. Adler was later released. Escandar paid the officers $10,000.00 and one ounce of cocaine for their aid. Tateishi's money was claimed from the police property room by Oscar Rodriguez, Tateishi's attorney. Derringer prepared the property release and gave it to Izaguirre for his signature. Tateishi, however, stated that he did not authorize the transfer. Zatrapalek testified that the money was divided among Rodriguez and the officers. None of the money collected during their dealings with Escandar was reported by the appellants on their income tax returns.
Unbeknownst to the defendants, Escandar had been an informant for the Federal Bureau of Investigation (FBI) since 1972. In fact, he had been relaying information concerning their activities. Without Escandar's knowledge, the FBI procured a warrant to conduct electronic surveillance of his home. The district court denied a motion to suppress the evidence gained through such surveillance.
An application for an order authorizing electronic surveillance must include
a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.
18 U.S.C. Sec. 2518(1)(c). Based on the application, the district court may grant an ex parte order if it determines that "normal investigative procedures have been tried
and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous ...." Id. at Sec. 2518(3)(c).
These statutory requirements are designed to insure that wiretapping is neither "routinely employed as the initial step in criminal investigation," United States v. Giordano, 416 U.S. 505, 515, 94 S.Ct. 1820, 1827, 40 L.Ed.2d 341, 353 (1974), nor "resorted to in situations where traditional techniques would suffice to expose the crime." United States v. Kahn, 415 U.S. 143, 153 n. 12, 94 S.Ct. 977, 983 n. 12, 39 L.Ed.2d 225, 236 n. 12 (1974). Yet, "it is not necessary to show a comprehensive exhaustion of all possible techniques." United States v. Hyde, 574 F.2d 856, 867 (5th Cir.1978). 2 See also United States v. Matya, 541 F.2d 741, 745 (8th Cir.1976), cert. denied, 429 U.S. 1091, 97 S.Ct. 1101, 51 L.Ed.2d 536 (1977) (wiretapping not required only as a last resort).
FBI Special Agent Andre Fortier prepared the affidavit in support of the government's application based upon information supplied by Escandar and others. The affidavit referred to Escandar and two other sources, Source 1 and Source 2. Although not clear from the affidavit, Escandar and Source 1 were the same person. Fortier considered alternative investigative techniques. The FBI made inquiries at the Dade County Public Safety Department but the defendants soon learned of the FBI's interest in their activities. Physical surveillance had proven unsuccessful. The placement of undercover agents within the police department was very difficult and highly dangerous. The use of subpoenas or open questioning of the officers certainly would jeopardize the investigation. A grand jury would be unable to uncover the entire scope of the conspiracy. No probable cause existed at the time to justify the issuance of a search warrant. Because the defendants were...
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