U.S. v. De La Vega

• Decision Date: 02 October 1990
• Docket Number: No. 88-5166,88-5166
• Citation: 913 F.2d 861
• Parties: UNITED STATES, Plaintiff-Appellee, v. Arturo DE LA VEGA, Raimundo Betancourt, Ricardo Aleman, Mario Carballo and Osvaldo Coello, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 861

913 F.2d 861

UNITED STATES, Plaintiff-Appellee, v. Arturo DE LA VEGA, Raimundo Betancourt, Ricardo Aleman Mario Carballo and Osvaldo Coello, Defendants-Appellants.

No. 88-5166.

United States Court of Appeals, Eleventh Circuit.

Oct. 2, 1990.

Fred Schwartz, Raoul G. Cantero, III, Miami, Fla., for De La Vega.

Eric M. Cohen, Coral Gables, Fla. (Court-appointed), for Betancourt.

Milton Hirsch, Miami, Fla. (Court-appointed), for Aleman.

Jon May, Miami, Fla., for Carballo.

Sharon Jacobs Brown, Plantation, Fla., for Coello.

Dexter W. Lehtinen, U.S. Atty., Michael P. Sullivan, Mayra R. Lichter and Linda C. Hertz, Asst. U.S. Attys., Miami, Fla., for U.S.

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

Before TJOFLAT, Chief Judge, CLARK, Circuit Judge, and ESCHBACH ^*, Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge:

This is the consolidated appeal of five individuals who, based upon their involvement in what was dubbed the "Miami River Cops Case", were convicted of various offenses under the federal racketeering, narcotics, civil rights and tax laws. On appeal, they raise numerous arguments challenging their convictions or sentences. ¹ We affirm the convictions of all appellants but vacate the sentences of appellants Betancourt and De La Vega and remand them for re-sentencing.

I. PROCEDURAL BACKGROUND

The investigation by Metro-Dade Homicide Detectives of the causes of death of three corpses found floating in the Miami River led to the discovery of a scheme by which several Miami police officers forcibly separated narcotics traffickers from their drugs or ill-gotten gains then sold or otherwise distributed the illicit products. This practice netted the officers millions in proceeds and, after a lengthy procedural passage through the criminal justice funnel, hundreds of months in prison.

Their path to prison is as interesting as it is arduous. On June 12, 1986, appellants Coello, De La Vega and Aleman were first

                indicted along with four others for violating RICO and narcotics laws.  After the return of a superseding indictment on September 4, 1986, a jury was impaneled and on September 26, 1986 their trial commenced.  After nearly four months of trial and deliberation the jury was unable to achieve unanimity, and, on January 21, 1987 a mistrial was declared.  The saga continued on May 7, 1987 with the return of a second superseding indictment adding additional defendants and charges of income tax evasion.  On July 14, 1987 the grand jury returned its third and final superceding indictment including appellants Betancourt and Carballo and adding charges of conspiracy to murder government witnesses.  Of the fifteen men charged in the indictment, only three pled not guilty and sought jury trials. 2   Appellant Aleman was tried separately in September of 1987 and convicted of violating federal narcotics and tax laws.  After two-and-a-half months of trial, on February 9, 1988, appellants Carballo and Coello were found guilty by a jury of violating federal racketeering and narcotics laws. 3   The defendants now appeal asserting that the cumulative effect of a plethora of erroneous rulings denied them their right to a fair trial
                

II.

CARBALLO AND COELLO'S APPEAL

A. PRETRIAL PUBLICITY

1. Background

Not surprisingly the serious charges of widespread police wrongdoing, including murder allegations, piqued the attention and concern of the public. Accordingly, the media documented this two year drama with several hundred news reports. Though largely dispassionate, these accounts were occasionally punctuated by editorial remarks. In addition, these reports were disseminated by the major audio, video and print media sources which collectively reached the entire Dade County metropolitan area. Consequently, with two exceptions, all potential jurors recalled hearing something about the case. The extent and character of the veniremen's knowledge, however, greatly varied. While during individual questioning of about eighty veniremen concerning the extent of their knowledge of the "Miami River Cops Case" approximately twenty-five potential jurors indicated that they had already formed an opinion about the guilt or innocence of the defendants, the vast majority recalled only sketchy details of facts publicized by the media. As for those ultimately impaneled as jurors, two had never heard of the case and the most the other jurors knew collectively was that the case involved policemen, drugs, a murder on the Miami River, and a previous trial. All impaneled jurors indicated that they had not formed an opinion regarding the guilt or innocence of the defendants and stated that they could be impartial and render a verdict based solely on the evidence admitted at trial.

2. Discussion

Carballo and Coello allege that the pretrial publicity surrounding this case was so pervasive and prejudicial that the trial court's refusal to grant their motion for a change of venue or continuance deprived them of their Sixth Amendment right to trial by a fair and impartial jury. To prevail on this claim the appellants must show that they were actually prejudiced by the selection of this jury or that the factual circumstances of this case require the application of a presumption of prejudice.

a. Actual Prejudice

A finding of actual prejudice requires the appellants to demonstrate that one or more jurors entertained an opinion before the trial that the defendants were guilty and show that these jurors could not

put this prejudice aside and render a verdict based solely on the evidence presented. Irvin v. Dowd, 366 U.S. 717, 722-23, 727, 81 S.Ct. 1639, 1642-43, 1645, 6 L.Ed.2d 751 (1961); Cummings v. Dugger, 862 F.2d 1504 1509-10 (11th Cir.1989). Since mere exposure to pretrial publicity and some juror knowledge of the facts and issues involved in a case is constitutionally permissible, Irvin v. Dowd, 366 U.S. at 722-23, 81 S.Ct. at 1642-43, and since the record in this case in no way shows any evidence of jury bias or hostility towards the defendants, we must conclude that the trial court did not commit manifest error in concluding that this jury was not actually prejudiced against the appellants. See Cummings v. Dugger, 862 F.2d at 1511.

b. Presumed Prejudice

As no juror was actually prejudiced, relief may be granted only upon satisfaction of the presumed prejudiced standard. Jury prejudice may be presumed from pretrial publicity if the publicity is sufficiently prejudicial and inflammatory and if it saturated the community where the trial was held. Murphy v. Florida, 421 U.S. 794, 798-99, 95 S.Ct. 2031, 2035-36, 44 L.Ed.2d 589 (1975); Rideau v. Louisiana, 373 U.S. 723, 726-27, 83 S.Ct. 1417, 1644-45, 10 L.Ed.2d 663 (1963); Cummings v. Dugger, 862 F.2d at 1511; Bundy v. Dugger, 850 F.2d 1402, 1424 (11th Cir.1988); Coleman v. Kemp, 778 F.2d 1487, 1490 (11th Cir.1985). This standard is reserved for extreme situations where pretrial publicity renders "virtually impossible a fair trial by an impartial jury drawn from the community." Mayola v. Alabama, 623 F.2d 992, 997 (5th Cir.1980) See also, Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 554, 96 S.Ct. 2791, 2800, 49 L.Ed.2d 683 (1976); Cummings v. Dugger, 862 F.2d at 1511; Coleman v. Kemp, 778 F.2d at 1490-91.

While acknowledging that the media coverage of the Miami River Cops investigation and trials was extensive, the publicity was not sufficiently prejudicial and inflammatory to satisfy the "extensive evidentiary showing [required] to warrant relief." Coleman v. Kemp, 778 F.2d at 1491. With few exceptions, the three hundred and thirty newspaper articles included in the record are largely factual in nature and could not have created the sort of inflamed community atmosphere which courts deem presumptively prejudicial. See Rideau v. Louisiana, 373 U.S. at 724-27, 83 S.Ct. at 1418-20, (prejudice presumed where defendant's confession to robbery, kidnapping and murder was videotaped and shown three times by television stations and broadcasts reached audiences of 24,000, 53,000 and 29,000 in a community of 150,000); Coleman v. Kemp, 778 F.2d at 1491-1543 (prejudice presumed from extensive pretrial publicity prejudging guilt and sentence of defendants accused of killing a family in a rural county with a population of 7,000). That the community was aware of the defendants' alleged misconduct is simply not enough to satisfy the extremely heavy burden necessary to invoke the irrebuttable presumption that no impartial and fair jury could be assembled to try these defendants. Coleman v. Kemp, 778 F.2d at 1537; See also, Bundy v. Dugger, 850 F.2d at 1425, (No presumed prejudice from extensive media coverage where poll suggested 98% of county residents were familiar with the name "Bundy", 58% knew he had been involved in an earlier case, and 31% believed that Bundy's conviction in that case strongly indicated his guilt in the present case). Accordingly, we conclude that in this case, where the relevant community contained approximately 1.8 million persons and the news reports were largely factual, the court did not err in concluding that the community was not so inflamed and biased so as to create a presumption of prejudice that a fair and impartial jury panel could not be impaneled. ⁴

B. EVIDENCE OF CO-DEFENDANTS' CONVICTION

1. Background

Carballo and Coello next claim that the trial court erred in denying their motion for a mistrial after the government elicited statements from a witness that a co-defendant had been separately tried and convicted for his involvement in this case. The incident occurred during the re-direct examination of government case agent Detective Alex Alvarez by Special Assistant United States Attorney Trudi Novicki who asked,

Q. [s]econdly, what was the trial of Aleman? you were asked about Rudy Arias testifying at the trial of Aleman. What was that trial?

( ... objection ... overruled.).

A. What were the charges?

Q. Yes,...