U.S. v. Terzado-Madruga

• Citation: 897 F.2d 1099
• Decision Date: 02 April 1990
• Docket Number: No. 89-8063,TERZADO-MADRUG,D,89-8063
• Parties: 30 Fed. R. Evid. Serv. 662 UNITED STATES of America, Plaintiff-Appellee, v. Georgeefendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1099

897 F.2d 1099

30 Fed. R. Evid. Serv. 662

UNITED STATES of America, Plaintiff-Appellee, v. George TERZADO-MADRUGA, Defendant-Appellant.

No. 89-8063.

United States Court of Appeals, Eleventh Circuit.

April 2, 1990.

Rehearing Denied May 11, 1990.

Jon May, Miami, Fla., Richard A. Hamar, Hamar & Hamar, Los Angeles, Cal., for defendant-appellant.

J. Michael Faulkner, Asst. U.S. Atty., Savannah, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Georgia.

Before TJOFLAT and HATCHETT, Circuit Judges, and MORGAN, Senior Circuit Judge.

MORGAN, Senior Circuit Judge:

Following a jury trial, defendant George Terzado-Madruga ("Terzado") was convicted of possession with intent to distribute cocaine, in violation of 21 U.S.C. Sec. 841(a)(1), conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. Sec. 846, and violation of the Travel Act, 18 U.S.C. Sec. 1952. The defendant appeals, alleging the following grounds for reversal: (1) prosecutorial misconduct which resulted in illegally obtained evidence being admitted at trial; (2) the improper admission of highly inflammatory evidence concerning defendant's participation in the drug conspiracy; (3) the district court's erroneous reinstruction to the jury regarding the elements of conspiracy; (4) the district court's improper reliance upon certain criminal acts and a prior criminal conviction to enhance defendant's sentence. We affirm.

BACKGROUND

On March 31, 1988, a Georgia State Patrol officer stopped a vehicle for speeding on Interstate 95 in Bryan County, Georgia. The vehicle was being operated by Helen Villar, a resident of Miami, Florida. Her father, Rafael Villar, was a passenger in the vehicle. The patrolman determined that the vehicle, a 1985 Pontiac Grand Prix, was registered to Rafael Ortiz in Miami, Florida. Nervousness and conflicting stories regarding their intended destination caused the officer to seek and obtain a written consent to search the vehicle. During the search, two Georgia State Patrol officers discovered a secret compartment in the trunk which was operated by a concealed electronic switch. Approximately five kilograms of high-grade cocaine were found in the compartment.

After the discovery of cocaine, the Villars agreed to cooperate with the government investigators. The Villars advised the agents that they had previously transported cocaine for Terzado and that Terzado had furnished the drug-laden vehicle on this occasion. With the Villars' consent, the agents recorded several phone conversations in which the Villars pretended that their vehicle had developed transmission trouble. Terzado was recorded telling the Villars to "make sure the car is safe" and agreed to send money for repairs to the car. After inquiring as to the cost of having the vehicle towed to Washington, D.C., Terzado, using a false name, wired Following these conversations, Terzado and three companions traveled by plane from Fort Lauderdale, Florida, to Savannah, Georgia, rented a car, and drove to the Villars' motel. Terzado paid for the airline tickets and for the car rental in cash. Upon his arrival at the motel during the early morning hours of April 1, 1988, Terzado was identified by the Villars and arrested. He had no identification on his person but was carrying an envelope on which was written, "Are you in trouble with the police?"

$2,000.00 to Helen Villar in Savannah, Georgia.

Shortly following Terzado's arrest, the agents found his three companions--Orlando Ortiz, Rafael Ortiz, and Rosemarie Zahriyeh--sitting in a rental car in the motel parking lot. These individuals were also charged with drug related offenses. Included among the items seized from the rental car was a set of keys to the vehicle driven by the Villars and $3,000.00 cash. The charges against these three individuals were later dismissed.

On April 7, 1988, a federal grand jury in the Southern District of Georgia returned an indictment charging Terzado with possession with intent to distribute cocaine (Count One), conspiracy to commit that offense (Count Two), and traveling in interstate commerce to facilitate a business enterprise involving the distribution of cocaine (Count Three). After conducting a detention hearing, the magistrate determined that Terzado presented a demonstrable danger to the community and that no conditions of release would reasonably assure community safety. Accordingly, the magistrate entered an order directing that Terzado be detained pending trial.

After federal charges were filed against Terzado, the investigating agents received information from the Miami Police Department regarding Terzado's drug trafficking and "gang" activities. In late April, Drug Enforcement Agency Special Agent Larry Frye and Georgia Bureau of Investigation Special Agent Dan Drake were informed by Miami police officer Jose Alvarez that several informants had indicated that Terzado "had placed a hit" on an individual named David Nadal, a former "lieutenant" in Terzado's gang. According to police information, David Nadal had been accused by Terzado of stealing substantial quantities of Terzado's cocaine and, sometime later, had been shot. Nadal, who survived the shooting, later informed the Miami police that he though Terzado had ordered the "hit" on him. The agents received additional information from Victor Gonzalez, that in late November or early December 1987, Terzado had offered him $10,000.00 to perform a drive-by shooting of Nadal and Danny Gonzalez, another former associate of Terzado.

On May 5, 1988, an individual named Jose Jiminez ("Joey") was arrested in Miami for his suspected involvement in the shooting of an individual named Adolfo Damian Cabrerra ("Mosquito") in December 1987. Prior to Joey's arrest, officer Alvarez had been advised by an informant that Joey had previously served as a body guard for Terzado. Following his arrest, Joey confessed to the shooting of Mosquito and reluctantly agreed to cooperate. Joey informed the police that Terzado had on several occasions stated that he wanted Nadal killed and had asked Joey to carry out the murder. Joey further informed the agents that on other occasions Terzado had asked if he would "take care of" Danny Gonzalez. Although these conversations with Terzado apparently took place prior to the attempt on Nadal's life, Joey also advised the officers that in his most recent conversation with Terzado--who was in jail following his arrest in Georgia--Terzado had asked how "Danny" (Gonzalez) was doing and again expressed an interest in retaliating against Gonzalez because of his perceived threat to Terzado. After interviewing Joey on May 5, officer Alvarez immediately contacted Special Agents Frye and Drake and advised them of the information he had received regarding Terzado's continuing plans to murder a potential government witness.

Upon receiving this information, federal and state authorities embarked upon a joint investigation to gather additional information regarding Terzado's previous efforts The recordings were highly incriminating to Terzado. During the first recorded conversation with Joey on May 7, Terzado indicated at the outset that he had tried to reach Joey the previous day. Terzado explicitly asked Joey how much it would cost to have Danny Gonzalez "lose his air." During these discussions, Terzado made clear that he wanted it "to look like an accident." After indicating that he wanted Danny Gonzalez "runned [sic] over crossing the street," Terzado stated that "if it's too difficult that way," then Gonzalez should be shot "in the testicles[,] in the stomach, two or three [times]." Terzado was emphatic that, regardless of the method employed, "it has to be lights out so that he doesn't talk any more." After discussing payment terms, Terzado indicated that he would speak with "Brunilda [Gonzalez] ... so that she can have everything ready." Terzado also cautioned Joey to "wear a mask" and stated that "you can't leave any evidence whatsoever." In subsequent conversations, Terzado indicated that he had already spoken with Brunilda and arranged to have her deliver the nine millimeter handgun (a "nine") and the payoff money. Shortly after these conversations, Brunilda Gonzalez did in fact deliver to Joey a nine millimeter pistol and his expense money.

to contract for the murders of David Nadal and Danny Gonzalez, and to determine whether Terzado was presently engaged in an attempt to commit murder. In an effort to document the murder plot and prevent any such crime, the agents secured Joey's cooperation in recording his telephone conversations with Terzado. The agents instructed Joey not to initiate any conversations with Terzado about murdering Danny Gonzalez, but simply to "follow along" should Terzado make any reference to such a scheme. The agents also told Joey not to discuss any past drug dealings or pending charges against Terzado. The agents then recorded a series of telephone conversations between Joey and Terzado, Terzado's supposed "common-law" wife, Brunilda Gonzalez, and an individual named "Cosmo."

Danny Gonzalez was contacted by the police and agreed to allow the police to simulate gunshot wounds with makeup and take a photograph in which it would appear that he had been shot and killed as Terzado requested. After Brunilda was shown the staged photograph proportedly taken after Danny Gonzalez had been killed, she stated "I knew [the target] was David or Danny." Brunilda later paid Joey approximately $4,700.00 for the "murder." After her arrest by Miami police on June 6, 1988, Brunilda admitted giving Joey the gun and paying him for the murder of Danny Gonzalez.

On June 7, 1988, a superseding indictment was unsealed charging Terzado in three new counts with violations of the Murder-for-Hire Statute, 18 U.S.C. Sec. 1952 (Counts Four-Six). Brunilda Gonzalez was added as a defendant and charged with conspiracy to...