U.S. v. Batista

• Decision Date: 17 November 1987
• Docket Number: No. 87-1362,87-1362
• Citation: 834 F.2d 1
• Parties: 23 Fed. R. Evid. Serv. 1378 UNITED STATES of America, Appellee, v. Edward David BATISTA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 1

834 F.2d 1

23 Fed. R. Evid. Serv. 1378

UNITED STATES of America, Appellee, v. Edward David BATISTA, Defendant, Appellant.

No. 87-1362.

United States Court of Appeals First Circuit.

Submitted Sept. 30, 1987.

Decided Nov. 17, 1987.

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

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"). 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 location for the sale.

On September 5, 1986, the scheduled day of the sale, the DEA found that it was unable to book a sufficient number of rooms at the Holiday Inn. It therefore booked rooms at the Marriott Hotel in Burlington. The DEA instructed appellant not to advise Ulloa of the change until he met Ulloa at the Holiday Inn. Appellant was upset at this change and told Cepero that he believed his life would be in danger. Cepero offered to accompany appellant to the meeting with Ulloa and told appellant that he would be under surveillance. Appellant, however, declined Cepero's offer to accompany him and repeatedly requested that he be allowed to arrive with Ulloa at the Marriott without any DEA surveillance. Appellant explained that he was afraid Ulloa would detect the surveillance. Later, appellant indicated reluctance to complete the deal. He said he was fearful that the federal agents would arrest him. The DEA agents assured appellant that they would only pretend to arrest him and Cepero for the benefit of Ulloa.

The sale was to take place at midnight on September 5. At 9:00 p.m., appellant met with Special Agent Ritucci and Benny Mangor ("Mangor"), another DEA agent. Appellant again requested that he and Ulloa be allowed to arrive at the Marriott without surveillance. After inquiry from Mangor, appellant acknowledged that he had made independent contact with Ulloa and had arranged to meet at either the hotel or a gas station, at Ulloa's discretion. Appellant told the agents that Ulloa would contact him shortly at a pay telephone.

Ulloa chose the gas station. Appellant, after requesting no surveillance, drove there to meet Ulloa. The DEA agents in fact followed appellant and saw him meet with Ulloa and a woman later identified as Ana Narvaez ("Narvaez"). As arranged, they then went to the hotel room where Ulloa produced ten kilograms of cocaine. Ulloa and Narvaez were arrested immediately. About fifteen minutes later, Mangor told appellant that he was going to search his car. Appellant then admitted that he had an extra ten kilograms of cocaine in his car. Mangor arrested appellant and found the cocaine in the car. Appellant said that Ulloa had surprised him by bringing the additional ten kilograms. He said that Ulloa intended to sell this additional cocaine to appellant's cousin.

On September 23, 1986, a federal grand jury indicted appellant for possessing with intent to distribute more than one kilogram of cocaine in violation of 21 U.S.C. Sec. 841(a)(1) (1982). Appellant moved to dismiss the indictment on the ground that the DEA had violated his Sixth Amendment right to counsel. After a hearing on November 5, 1986, the court denied the motion on December 23, 1986, as stated above. On February 12, 1987, after a jury trial, appellant was found guilty. He was sentenced to twelve years in prison. This appeal followed.

For the reasons stated below, we affirm the judgment of conviction.

II.

In Kirby v. Illinois, 406 U.S. 682 (1972), the Supreme Court held that, while an accused has a right to assistance of counsel under United States v. Wade, 388 U.S. 218 (1967), at any "critical stage" of a prosecution against him, that right does not attach until the government has initiated judicial criminal proceedings, such as a "formal charge, preliminary hearing, indictment, information, or arraignment." Kirby, supra, 406 U.S. at 689. The Court explained the rationale for this holding as follows:

"The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law."

Id. The Court later held that the Sixth Amendment, by its very terms, "becomes applicable only when the government's role shifts from investigation to accusation." Moran v. Burbine, 475 U.S. 412, 430 (1986).

Appellant argues that the DEA agents should have obtained the approval of Davis, his counsel, before allowing appellant to participate in the undercover operation. He contends that their failure to do so--especially when they knew that he had been represented by counsel and that his counsel had advised appellant against further cooperation with the authorities--interfered with appellant's right to counsel. Appellant acknowledges that under Kirby, supra, the right to counsel does not attach until the government has initiated formal proceedings. He also recognizes that no formal proceedings on the federal charges had been initiated against him at the time in question. He argues, however, that, since he had been indicted earlier on the state charges, his right to counsel attached then with respect to the state charges. He then advances what we regard as the untenable further argument that, since the federal crime for which he was convicted arose out of what h...