834 F.2d 1 (1st Cir. 1987), 87-1362, United States v. Batista

Docket Nº:87-1362.
Citation:834 F.2d 1
Party Name:UNITED STATES of America, Appellee, v. Edward David BATISTA, Defendant, Appellant.
Case Date:November 17, 1987
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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834 F.2d 1 (1st Cir. 1987)

UNITED STATES of America, Appellee,

v.

Edward David BATISTA, Defendant, Appellant.

No. 87-1362.

United States Court of Appeals, First Circuit

November 17, 1987

Submitted Sept. 30, 1987.

Willie J. Davis, Boston, Mass., with whom Davis and Robinson, Boston, Mass., was on brief, for defendant, appellant.

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Jonathan Chiel, Asst. U.S. Atty., Boston, Mass., with whom Frank L. McNamara, Jr., Acting U.S. Atty., Boston, Mass., was on brief, for appellee.

Before CAMPBELL, Chief Judge, and TIMBERS, [*] Senior Circuit Judge, and BREYER, Circuit Judge.

TIMBERS, Senior Circuit Judge.

Edward David Batista ("appellant") appeals from a judgment of conviction entered March 31, 1987 in the District of Massachusetts, Andrew A. Caffrey, Senior District Judge, upon a jury verdict of guilty on a charge of possessing with intent to distribute more than one kilogram of cocaine, in violation of 21 U.S.C. Sec. 841(a)(1) (1982). The appeal brings up for review the district court's pretrial order of December 23, 1986, denying appellant's motion to dismiss the indictment. 652 F.Supp. 942 (D.Mass.1986).

On appeal, appellant argues, first, that his Sixth Amendment right to counsel was abridged when federal agents of the Drug Enforcement Administration ("DEA") used him as an informant without the prior consent of his counsel; second, that we should exercise our supervisory powers and dismiss the indictment; third, that the district court committed reversible error when it permitted the prosecutor to ask appellant on cross-examination to comment on the credibility of other witnesses; and, fourth, that the district court committed reversible error when it refused to instruct the jury on appellant's state of mind.

We hold that appellant's Sixth Amendment right to counsel, which had attached only with regard to an entirely separate offense, did not protect him from investigations by federal agents on a later unrelated crime. We also hold that the actions of the federal agents do not warrant the exercise of our supervisory powers. We further hold that the district court did not commit reversible error in permitting the prosecutor to question appellant on the credibility of other witnesses. Finally, we hold that the court's jury instructions were proper.

We affirm.

I.

We summarize only those facts believed necessary to an understanding of the issues raised on appeal.

In April 1985, the Suffolk County District Attorney caused appellant to be arrested and to be indicted by a grand jury on charges of possessing and trafficking in cocaine. Appellant's counsel, Willie J. Davis ("Davis"), met with Detective George Foley ("Foley") and other members of the Boston Police Department and arranged to have appellant cooperate with the local authorities. Davis also met with William Walsh ("Walsh"), a Suffolk County Assistant District Attorney, to negotiate a plea bargain. After appellant's cooperation resulted in the arrest of seven people and the seizure of several pounds of cocaine, the Boston Police recommended to Walsh that appellant receive a suspended sentence. Walsh instead stated that, while he would drop the trafficking charge, he would press for a five year state prison sentence on the possession charge.

Foley then introduced appellant to several DEA agents, including Special Agent Joseph Ritucci ("Ritucci"). They discussed the possibility that appellant's further cooperation with federal agents might cause the Suffolk County District Attorney's Office to recommend a reduced sentence. Davis advised appellant against further cooperation. After several more meetings it became clear to Foley, Davis and appellant that the District Attorney's Office would maintain its position despite any further cooperation by appellant. Nevertheless, and despite Foley's reiteration of his belief that appellant would gain nothing by cooperating, appellant continued to provide information to and cooperation with the federal authorities.

In August 1986, appellant provided information to Ritucci about a New York cocaine dealer named Felix Ulloa ("Ulloa").

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The DEA decided to finance an undercover operation (the "Ulloa operation"), in which Ulloa would meet with appellant and Jaime Cepero ("Cepero"), a Massachusetts state trooper who would pose as a buyer. Under this plan, Ulloa would sell Cepero ten kilograms of cocaine at $30,000 per kilogram.

On September 3, 1986, appellant and Cepero were supposed to meet with Ulloa to find a suitable hotel at which to consummate the sale. Appellant, however, failed to meet first with Cepero. Instead he went directly to meet with Ulloa. Having spent time searching for appellant, Cepero was late for the meeting with Ulloa. Appellant left with Ulloa and appellant's cousin before Cepero arrived. Ulloa and appellant chose a Holiday Inn as the...

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