873 F.2d 569 (2nd Cir. 1989), 624, United States v. Carmona

Docket Nº:624, Docket 88-1232.
Citation:873 F.2d 569
Party Name:UNITED STATES of America, Appellee, v. Fernando CARMONA, Jose Omar Sanchez, Carlos Escobar, Faoud Hassan, Angelica Carvajal, Luz Marina Carvajal, Sophie Mejia Carvajal, Luis Garcia, Jesus Zambrano, Vicky Quinjano, Gonzalo Gaviria, Robert Pietri, Jose Santa Cruz-Londono, Defendants. Appeal of Gonzalo GAVIRIA, a/k/a
Case Date:April 19, 1989
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 569

873 F.2d 569 (2nd Cir. 1989)

UNITED STATES of America, Appellee,

v.

Fernando CARMONA, Jose Omar Sanchez, Carlos Escobar, Faoud

Hassan, Angelica Carvajal, Luz Marina Carvajal, Sophie Mejia

Carvajal, Luis Garcia, Jesus Zambrano, Vicky Quinjano,

Gonzalo Gaviria, Robert Pietri, Jose Santa Cruz-Londono, Defendants.

Appeal of Gonzalo GAVIRIA, a/k/a "Palestino", Defendant-Appellant.

No. 624, Docket 88-1232.

United States Court of Appeals, Second Circuit

April 19, 1989

Submitted Jan. 6, 1989.

Page 570

Richard A. Hamar, Miami, Fla. (Hamar and Hamar, Miami, Fla., of counsel), submitted brief for defendant-appellant Gonzalo Gaviria.

Ephraim Savitt, Asst. U.S. Atty., E.D.N.Y., New York City (John Gleeson, Asst. U.S. Atty., Andrew J. Maloney, U.S. Atty., E.D.N.Y., New York City, of counsel), submitted brief for appellee.

Before KEARSE, CARDAMONE and WINTER, Circuit Judges.

CARDAMONE, Circuit Judge:

Gonzalo Gaviria appeals from a May 22, 1988 judgment of conviction entered in the United States District Court for the Eastern District of New York (McLaughlin, J.), following a two-day jury trial in March 1988. In a one-count indictment appellant and 11 co-defendants were charged with conspiracy to import, possess and distribute large quantities of cocaine between 1980 and March 1984 in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (1982 & Supp. IV 1986). Three of the co-defendants, Omar Sanchez, Sophie Carvajal and Luz Carvajal were tried and convicted in October 1987 in absentia. The conviction of a fourth co-defendant, Carlos Escobar, the only other defendant to appear, was affirmed. See United States v. Carmona, 858 F.2d 66 (2d Cir.1988) (per curiam). Three of the remaining defendants are fugitives, two were shot to death before trial, and the charges against Fernando Carmona were dropped. Upon conviction appellant was sentenced to a 12-year prison term and fined $25,000. From the judgment of conviction Gaviria appeals. We affirm.

BACKGROUND

Investigation by the New York Drug Enforcement Task Force revealed that from early 1980 until March 1984 an international cocaine distribution organization headed by Colombian businessman Jose Santa Cruz-Londono was responsible for importing and distributing in the United States nearly 2000 kilograms of cocaine. From this illicit activity the organization, which operated cocaine distribution centers in New York City, Los Angeles, Miami and Houston, reaped millions of dollars in illegal profits.

The New York distribution center was run by "managers," who were responsible for conducting the daily narcotics business affairs for Santa Cruz. These managers included several of Gaviria's co-defendants, namely, Carlos Escobar, Omar Sanchez, Faoud Hassan and Fernando Carmona, as well as Alfredo Cervantes, who was the government's principal trial witness. The managers were responsible for maintaining "stash" locations in which large amounts of cocaine and cash were stored, delivering cocaine in kilogram packages to the organization's "clients," and collecting payments for those deliveries from the clients. The managers also received and stored the cocaine that was transported into New York by automobile or by the organization's airplane, and transferred large sums of cash to Panama where it was "laundered" and deposited in the organization's bank.

Another essential task performed by the managers was the maintenance of detailed accounts, consisting of handwritten ledgers and journals, reflecting the inflow and outflow of cocaine and cash. In particular, these records showed the amount of cocaine measured in kilograms delivered on a specific date to each client and the amount of the payment received. All of the approximately 40 or so clients of the Santa Cruz organization in New York City during the period 1982 through March 1984 were designated in the Santa Cruz organization's drug ledgers by a nickname or "code" name. Each purchased cocaine on a wholesale basis and controlled his or her own

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independent distribution network. These written records were seized by DEA agents from members of the Santa Cruz organization. The accounts and ledgers indicated that during the periods from May to December of 1981, and from April of 1982 to March of 1984 one particular client code-named "Palestino" purchased in excess of $800,000 worth of cocaine.

A jury trial took place over two days in early March 1988 and evidence presented there established that "Palestino" is the appellant Gonzalo Gaviria. After appellant's conviction a sentencing or Fatico hearing was held on May 27, 1988 to determine, inter alia, the reliability and accuracy of certain information contained and statements made in Gaviria's pre-sentence report. In particular, defense counsel challenged the assertion in the report that Gaviria was a "contract killer for the Santa Cruz organization ... responsible for several drug related murders in New York and Florida." Finding the testimony of DEA Agent Jerome McArdle and probation officer Manuel Fuentes to be credible, and the information upon which they testified to be reliable, Judge McLaughlin imposed the earlier noted sentence.

DISCUSSION

Three issues are raised on appeal. Gaviria contends that the district court: (1) improperly admitted evidence that the name "Lucho" next to the notation "Cali ofici" in the telephone address book seized from him by arresting officers was the same as that of Santa Cruz' brother in Cali, Colombia; (2) erroneously admitted testimony that he identified himself during routine post-arrest questioning by the false name "Carlos Santelli," after he had previously invoked his right to counsel; and (3) impermissibly enhanced his sentence based on hearsay testimony at the Fatico hearing which described how five informants, each unknown to the others, had positively identified appellant as a "contract killer." We discuss each of these issues in turn.

I

The government's chief witness Cervantes testified that Jose Santa Cruz-Londono, the leader of the drug organization, lived in Cali, Colombia and had a brother named Lucho. Cervantes further stated that at Christmas in 1982 he traveled to Cali and was present in both Santa Cruz' office and home. While there, he met Santa Cruz' wife and his brother Lucho. The informant claimed that he met Lucho Santa Cruz several times in Colombia and, on one occasion, in Florida.

In October 1987 appellant was arrested in Miami, Florida by officers of a DEA task force that had a warrant for his arrest. Upon performing a routine search of appellant's clothing, the officers discovered a red telephone-address book. Among the handwritten entries was the name "Lucho" above the words "Cali ofici" and a telephone number. The exhibit was offered and received into evidence without objection. Defense counsel's earlier motion to exclude this evidence had prompted a ruling from Judge McLaughlin that the address book was admissible under Fed.R.Evid. 401, and that the defense could attack the weight to be accorded it.

"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice...." Fed.R.Evid. 403. Under Rule 401 relevant evidence "means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." The central issue in this case was Cervantes' identification of appellant Gaviria as "Palestino," the nickname or code name by which he was known to the Santa Cruz ring. Palestino was described by Cervantes as a customer of the Santa Cruz organization. It was in that capacity, according to the informant, that he met appellant. The fact that Gaviria carried the name and telephone number of Santa Cruz' brother in his address book is an important piece of evidence. It corroborated Cervantes' identification of appellant as "Palestino," by linking Gaviria to the Santa Cruz operation. Thus, the red address book satisfies the test of relevance in

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Rule 401 because it made the correctness of Cervantes' identification "more probable" than it would have been without it.

A trial court's conscientious assessment of the relevance of proffered evidence against its potential prejudice will stand unless an appellate court believes the trial judge abused his discretion and acted arbitrarily. See United States v. Birney, 686 F.2d 102, 106 (2d Cir.1982); United States v. Robinson, 560 F.2d 507, 514 (2d Cir.1977) (en banc), cert. denied, 435 U.S. 905, 98 S.Ct. 1451, 55 L.Ed.2d 496 (1978). Appellant claims that the chain of inferences needed to connect him to the ultimate fact to be proved--that he was a member of the Santa Cruz cocaine conspiracy--was so attenuated that the probative value of the "Lucho" testimony was outweighed by its potential prejudice. In particular, appellant makes two arguments. First, he notes that Cervantes testified that he met Lucho Santa Cruz in Cali, Colombia in 1982. Appellant was arrested some years later. Thus, Gaviria argues that the passage of time between Cervantes' alleged acquaintance with Lucho and his (Gaviria's) arrest weakens the corroborative impact of the proffered evidence, but continues its potentially prejudicial effect. Also, keeping in mind that Cali is a city of two million people and that "Lucho" is a common name, Gaviria argues that it is uncertain whether the "Lucho" Cervantes knew was the same "Lucho" that is Jose Santa Cruz' brother. Relying primarily on a panel's prior decision in United States v....

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