U.S. v. Castro
| Decision Date | 15 November 1985 |
| Docket Number | No. 85-1132,85-1132 and 85-1148,GARCIA-REMEDI,P,GARCIA-REMEDIO,Nos. 85-1127,85-1132,s. 85-1127 |
| Parties | 19 Fed. R. Evid. Serv. 605 UNITED STATES of America v. CASTRO, Victor. Appeal of Victor CASTRO. UNITED STATES of America v. SUAREZ, Tomas. Appellant inUNITED STATES of America v.ablo. Appeal of Pablo |
| Court | U.S. Court of Appeals — Third Circuit |
Creed C. Black, Jr. (Argued), Ballard, Spahr, Andrews & Ingersoll, Philadelphia, Pa., for Victor Castro.
Robert O'Shea (Argued), Shein & Brookman, Philadelphia, Pa., for Tomas Suarez.
Lloyd A. Gelwan (Argued), Stephen A. Madva, Montgomery, McCracken, Walker & Rhoads, Philadelphia, Pa., for Pablo Garcia-Remedio.
Judy Goldstein-Smith (Argued), Asst. U.S. Atty., Edward Zittlau, Edward S.G. Dennis, Jr., U.S. Atty., Walter S. Batty, Jr., Asst. U.S. Atty., Philadelphia, Pa., for appellee.
Before ADAMS and JAMES HUNTER, III, Circuit Judges, and FISHER, * District Judge.
Victor Castro, Pablo Garcia-Remedio, and Thomas Suarez appeal their convictions in the United States District Court for the Eastern District of Pennsylvania for offenses stemming from the attempted purchase of more than 1,000 pounds of marijuana. This appeal requires us to decide whether an asserted variation between the indictment and the evidence presented at trial violated the fifth amendment's grand jury clause, whether the evidence at trial sufficed to convict Garcia-Remedio and Suarez, and whether the trial court's instructions fairly and adequately placed Castro's entrapment defense before the jury. Subject matter jurisdiction below was based on 18 U.S.C. Sec. 3231 (1982); we have appellate jurisdiction under 28 U.S.C. Sec. 1291 (1982). We affirm.
Appellants are three of the nine defendants named in a thirteen count superseding indictment returned by a grand jury in the Eastern District of Pennsylvania on August 29, 1984. Count one of the indictment charged all nine defendants with conspiracy to possess with intent to distribute more than 1,000 pounds of marijuana, and count thirteen with the attempt to possess, with intent to distribute, more than 1,000 pounds of marijuana, both in violation of 21 U.S.C. Sec. 846 (1982). Counts two and three charged Castro with the unlawful use of a communication facility to further the conspiracy, in violation of 21 U.S.C. Sec. 843(b) (1982). Counts eleven and twelve charged Suarez with carrying a firearm during the commission of a felony, in violation of 18 U.S.C. Sec. 924(c)(2) (1982), and with the possession of an unregistered silencer in violation of 26 U.S.C. Sec. 5861(d) (1982). Count thirteen charged all nine defendants with the attempt to possess with intent to distribute more than 1,000 pounds of marijuana, also in violation of 21 U.S.C. Sec. 846 (1982).
The indictment originated in a Drug Enforcement Agency ("DEA") "reverse-sting" operation, in which DEA agents posed as sellers of large quantities of marijuana. The operation began in Texas. In the course of negotiating with prospective purchasers from the Texas area, the agents were introduced to Sebastian Ganci, a Florida restaurateur, who expressed an interest in acting as a "broker" between the agents and buyers in Florida. On February 2, 1984, Ganci attempted to negotiate a purchase of 15,000 pounds of marijuana from the DEA agents. The deal fell through, however, when the parties could not agree on the appropriate means to transport the marijuana. A second deal on February 17, 1984 also fell through, but Ganci advanced $50,000 to the agents as "good faith" money after the agents told him that they would not deal with him in the future unless they received some payment. The agents promised to credit Ganci with the money on a future transaction. After another transaction came to naught, Ganci met the agents in Houston, Texas on April 17, 1984 to discuss future dealings; Victor Castro accompanied Ganci to this meeting and was introduced to the agents as Ganci's interpreter.
The scene of the sting operation shifted to the Philadelphia area, where the DEA kept a large amount of marijuana confiscated from earlier prosecutions in a warehouse in Bristol, Pennsylvania. On May 3, 1984, agents met with Ganci and Castro at the Mid-Town Holiday Inn in Philadelphia to discuss arrangements for the sale of some of this marijuana. On May 5, 1984, agents met with Ganci, Castro, and Ricardo Iglesias at the Imperial Inn in Bristol; Ganci and the agent examined the marijuana in the warehouse, and Iglesias, a representative for the buyers, agreed to purchase between 2,500 and 4,500 pounds. The agents told Ganci that they would deduct the $50,000 credit from the purchase.
On May 17, 1984, DEA agents met with Ganci, Iglesias and other men introduced as buyers and their employees, at the Marriott in Philadelphia. Iglesias took one of the agents to the Marriott parking lot, where Iglesias opened the trunk of a Cadillac and showed the agent two briefcases containing what Iglesias represented to be $580,000 for the downpayment on the marijuana. Agents accompanied the buyers to Bristol to close the deal, but after the parties could not agree on how the money would be delivered, the buyers called off the deal. Realizing that closing the Bristol transaction was temporarily, if not permanently, impossible, the agents proceeded to arrest the suspects they believed to be involved in the deal.
Back at the Marriott, agents watching Iglesias's Cadillac observed Suarez sitting in the driver's seat of a car parked directly across from the Cadillac, apparently guarding the money. As the agents approached Suarez to arrest him, they saw him reach beneath his seat. The agents ordered Suarez out of the car and searched him; a subsequent search of the car revealed a loaded automatic pistol with a silencer concealed beneath the driver's seat. Agents arrested Iglesias and Garcia-Remedio as they left Iglesias's room at the Marriott. Two months later, DEA agents arrested Castro in Miami.
Count one of the superseding indictment charged that all of the defendants "[f]rom in or about January 1984, to on or about May 17, 1984, at Philadelphia and Bucks County, in the Eastern District of Pennsylvania, and elsewhere" conspired to possess, with intent to distribute, a quantity of marijuana exceeding 1,000 pounds. The indictment specified twenty-four separate overt acts, of which ten relate to the aborted transactions outside Pennsylvania. The Government took the position at trial that all of Ganci's activities related to a single conspiracy, and that the Bristol transaction represented merely the concluding episode in the conspiracy. The trial court rejected this construction, however, and instructed the jury that the defendants could only be found guilty if they conspired to possess the Bristol marijuana. On December 12, 1984, a jury convicted Suarez and Garcia-Remedio on all counts against them, and returned a guilty verdict against Castro on those counts against him except the attempted possession charge.
All of the defendants in this appeal maintain that the conspiracy charged in the indictment impermissibly varied from the one the government proved at trial. We noted in United States v. Somers, 496 F.2d 723, 743 (3d Cir.), cert. denied, 419 U.S. 832, 95 S.Ct. 56, 42 L.Ed.2d 58 (1974) that two types of variations between the indictment and evidence exist: amendments, which occur when the charging terms of the indictment are altered, and variances, where the charging terms are unchanged, but the evidence at trial proves facts materially different from those alleged in the indictment. Somers, 496 F.2d at 743 n. 38 quoting Gaither v. United States, 413 F.2d 1061, 1071 (D.C.Cir.1969). 1 The difference between these variations is not merely academic, for we observed that Supreme Court precedent indicated that if the variation were characterized as an amendment, it would constitute a per se violation of the fifth amendment's grand jury clause. 2 Somers, 496 F.2d at 743. Variances, however, are subject to less strict case-by-case inquiry, and would only constitute reversible error in those cases where the variance prejudiced the defendant's defense. Id. at 743-44. Our analysis led us to conclude that:
in evaluating variances, we must first determine whether there has been a modification in the elements of the crime charged.... If such a modification exists, we will apply the per se rule of Stirone [Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960) ] so as to preserve the shielding function of the grand jury. If, on the other hand, the variance does not alter the elements of the offense charged, we will focus upon whether or not there has been prejudice to the defendant....
Somers, 496 F.2d at 744 (citations omitted).
The Supreme Court recently confirmed such an analysis in United States v. Miller, --- U.S. ----, 105 S.Ct. 1811, 85 L.Ed.2d 99 (1985). In Miller, the grand jury charged Miller with defrauding his insurer by consenting to a burglary of his salvage company and subsequently claiming the losses from the burglary in excess of the value of the stolen property, both acts in violation of 18 U.S.C. Sec. 1341 (1982). At trial, however, the government only presented proof related to the latter allegation. Although the government moved to strike the part of the indictment alleging prior knowledge of the burglary, Miller's counsel objected to the change, and the court sent the entire charge to the jury. The jury found Miller guilty, and Miller appealed, asserting that the variance between the indictment and the proof at trial violated the fifth amendment's grand jury guarantee.
The Court began its analysis by noting that the evidence at trial "was clearly sufficient" to support Miller's conviction. Id. at 1813. The Court next focused on whether the indictment properly gave...
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