U.S. v. Gessa

• Decision Date: 08 November 1991
• Docket Number: Nos. 90-5825,90-5903,s. 90-5825
• Parties: UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Alberto GESSA, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 265

944 F.2d 265

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Alberto GESSA, Defendant-Appellant, Cross-Appellee.

Nos. 90-5825, 90-5903.

United States Court of Appeals, Sixth Circuit.

Argued May 6, 1991.

Decided Aug. 29, 1991.

Rehearing En Banc Granted,

Opinion Vacated Nov. 8, 1991.

Contie, Senior Circuit Judge, filed a concurring opinion.

Joe B. Brown, U.S. Atty., H.H. Hester, Asst. U.S. Atty. (argued and briefed), Office of U.S. Atty., Nashville, Tenn., for plaintiff-appellee, cross-appellant.

Charles R. Ray (argued and briefed), Bryan & Marett, Nashville, Tenn., for defendant-appellant, cross-appellee.

Before KRUPANSKY and MILBURN, Circuit Judges, and CONTIE, Senior Circuit Judge.

KRUPANSKY, Circuit Judge.

Defendant Alberto Gessa (Gessa) appealed his conviction and sentence on one conspiracy and one substantive count of cocaine distribution. The United States cross-appealed from the district court's alleged misapplication of the sentencing guidelines.

Following Gessa's conviction by jury on both counts, the district court on June 13, 1990 sentenced him to serve 96 months in prison. The sentence resulted from a one-month downward departure from a selected guideline range of 97-121 months. The government cross-appealed, charging that, in predicating the sentence upon only 2.5 to 3 kilograms of cocaine, the district court had improperly ignored its own finding that Gessa had conspired to import and distribute 2,500 kilograms of cocaine.

Gessa was named along with 18 co-defendants in a 23-count indictment returned on February 28, 1989. Gessa was charged in count 1 with conspiring "from and in and about the summer of 1988" with all co-defendants to distribute cocaine and other substances. Count 11, the only other count in which Gessa was named, charged him and six others with the substantive offense of distributing unspecified quantities of cocaine in the Middle District of Tennessee "[i]n or about the spring and summer of 1988."

When Gessa became aware of the government's intention to insist upon his pretrial detention, he fled the jurisdiction and remained a fugitive for nine months. By the time he was finally apprehended on September 20, 1989, all of his co-defendants had either been tried and convicted or had pleaded guilty to the substantive and conspiracy charges against them. As a result of his fugitive status, Gessa was the last of the co-indictees to face trial.

The Government's evidence at Gessa's trial consisted primarily of the testimony of Camille Kohler (Kohler), the "bookkeeper" for the cocaine distribution ring headed by Gessa's brother, Alexander Gessa (Alex Gessa), and staffed in various capacities by the remaining co-indictees. In league with Kohler and the numerous co-conspirators, Alex Gessa operated an organization that customarily obtained cocaine in South Florida and distributed the drug in the Nashville, Tennessee area. Testimony from Kohler and others disclosed that the organization had, during a period spanning from the late spring of 1988 until Thanksgiving of that year, obtained approximately 2.5 to 3 kilograms of cocaine from Gessa for distribution in the Middle District of Tennessee.

Gessa objected to the admission of this testimony, arguing that it was hearsay information initially conveyed to the witnesses by non-testifying declarants. Concluding that the government had proven the existence of a conspiracy by a preponderance of the evidence, and that Alex Gessa's statements attributing the drugs to Gessa were made in "furtherance" of that conspiracy, the district overruled Gessa's objection pursuant to Fed.R.Evid. 801(d)(2)(E) and an accompanying Vinson-Enright ruling. ¹

Also over objection, the court permitted testimony that Gessa and his brother had, prior to their indictment, planned to import approximately 2,500 kilograms of cocaine from Columbia. According to Kohler, the Gessa brothers had intended to travel in Alex Gessa's boat from Fort Lauderdale to Green Turtle Cay, a remote island in the Bahama chain, to obtain 2,500 kilos of Columbian cocaine to be air-dropped on the island. Kohler related how the Gessa brothers conspired to ferry the drugs to the United States mainland and transship them to Tennessee for distribution. Kohler testified that, in furtherance of this grand scheme, she wired large amounts of cash from Tennessee to Alex Gessa in Fort Lauderdale, and had, in addition, arranged for the transportation of Alex Gessa's boat from Nashville to Florida. Kohler also disclosed that the brothers had engaged in what she characterized as "practice runs" in preparation for the boatlift. Witnesses Jesus Fleitas and Eli Palmer testified that on various occasions immediately preceding the timeframe of the alleged conspiracy they had accompanied Gessa to Green Turtle Cay to conduct similar (albeit smaller-scale) operations. In an effort to explain the money transfers and the shipment of his boat to Fort Lauderdale, Alex Gessa testified that he needed both the money and the boat to pursue an on-going, expensive relationship with one Laurie Becak, and that--in a ruse designed to mislead Kohler, with whom he was also romantically involved--had feigned interest in importing cocaine.

Gessa charged that the district court erred when it permitted witness Fleitas to testify that he (Fleitas) had accompanied Gessa to Green Turtle Cay to obtain cocaine on two occasions prior to the inception of the alleged conspiracy. Gessa objected to the introduction of this evidence under Fed.R.Evid. 404(b), arguing that Fleitas's testimony was unduly prejudicial evidence of prior bad acts. The district court, however, admitted the testimony, concluding that the evidence was probative of "preparation" or a "plan" to import and distribute 2,500 kilograms of cocaine. ²

Gessa asserted on appeal that, subsequent to his conviction, the government erroneously advanced the 2,500 kilograms of cocaine as a predicate quantity for sentencing purposes. The probation officer who prepared the presentence investigation report recommended to the district court that this greater quantity be assessed as "relevant conduct" under the guidelines. Pursuant to this observation, the probation officer calculated a base offense level of 36, ³ and added two points for Gessa's obstructive behavior in failing to surrender to the authorities upon his indictment. Coupled with a criminal history category of I, this yielded a sentencing range of from 235 to 293 months of incarceration.

Subsequent to a series of sentencing hearings, the district court concluded as a matter of fact that Gessa and his brother had conspired to import 2,500 kilograms of cocaine via the Bahamas. "The court is genuinely convinced and satisfied that there was such a scheme and subject of the conspiracy." In reaching this conclusion, the court expressly credited Kohler's testimony over that of Alex Gessa.

The district court, however, was not disposed to sentence Gessa accordingly. The court opined that it would have been "something else" for sentencing purposes if the Gessa brothers had actually "got that twenty-five hundred kilograms to shore...." The court remarked that the mere finding by a preponderance of the evidence that the scheme existed did not warrant imposition of such a draconian sentence for what the court termed "conversational cocaine." ⁴

The court advanced another, seemingly independent reason for its refusal to sentence Gessa according to the volume of cocaine implicated in the conspiracy. The court noted that all of Gessa's co-indictees had already been convicted and sentenced, and none, apart from kingpin Alex Gessa, had received a sentence longer than 97 months of incarceration, with most of the lower-level conspirators receiving sentences ranging from 10 to 60 months because their respective participation involved comparatively small quantities of cocaine. It is important to note, though, that organizational kingpin Alex Gessa received a sentence of 30 years pursuant to his plea of guilty to count 22 of the indictment, which charged him with leading a continuing criminal enterprise in violation of 21 U.S.C. § 848. (Neither Gessa nor any other co-defendant apart from Alex Gessa was charged under 21 U.S.C. § 848, the federal "kingpin" statute.) Alex Gessa's sentence reflected the statutory mandatory minimum for the offense of conviction, see id., and therefore was not premised in any way upon the quantity of cocaine implicated in his conduct.

The reasons for Gessa's sentencing dilemma are disclosed in the record. The prosecutions of the first 18 co-defendants had been conducted by an Assistant United States Attorney who had resigned from the United States Attorney's office prior to Gessa's capture. At the evidentiary hearing, the initial A.U.S.A. testified that, upon an evaluation of the evidence available to him at the time Gessa's co-defendants were scheduled for trial, he was of the considered opinion that the proof would not support a finding that the conspirators intended to import 2,500 kilograms of cocaine. However, the successor A.U.S.A. to whom Gessa's case was subsequently assigned for prosecution had the advantage of nine extra months in which to prepare a case against Gessa, during which period government investigations developed additional evidence of sufficient weight to warrant a prosecution of Gessa for conspiring to import, possess and distribute 2,500 kilograms.

Although the trial court credited Kohler's testimony and concluded that Gessa conspired to import, possess and distribute 2,500 kilograms of cocaine, it nevertheless rejected the probation officer's recommendation that Gessa be sentenced accordingly. Instead, the trial court decided to equalize Gessa's sentence with those of his co-defendants by selecting 2.5 to 3 kilograms of cocaine as the relevant conduct quantity, which was an amount commensurate to that upon which his co-conspirators had been...