U.S. v. Font-Ramirez
| Decision Date | 05 March 1991 |
| Docket Number | No. 90-1809,FONT-RAMIRE,D,90-1809 |
| Citation | 944 F.2d 42 |
| Parties | UNITED STATES, Appellee, v. Octavioefendant, Appellant. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Frank Pola, Jr., Hato Rey, P.R., by appointment of the Court, for defendant, appellant.
Jorge E. Vega-Pacheco, Asst. U.S. Atty., with whom Charles E. Fitzwilliam, Acting U.S. Atty., San Juan, P.R., was on brief, for appellee.
Before TORRUELLA and SELYA, Circuit Judges, and BOYLE, * District Judge.
Octavio Font-Ramirez (Font-Ramirez), along with two co-defendants, was arrested in his mother's apartment after police noticed a number of bricks of cocaine flying out of windows during the execution of a search warrant. Font-Ramirez appeals his conviction on charges of possession with intent to distribute 27.6 kilograms of cocaine.
Font-Ramirez' conviction was based largely on the testimony of Roberto E. Bouret, a drug importer who, after his arrest on unrelated drug charges, agreed to cooperate with the Drug Enforcement Agency (D.E.A.) in exchange for the possibility of a lighter sentence. Bouret was released on bond on April 6, 1989 and began working for the D.E.A. as an informant.
According to Bouret, on July 19, 1989, he met twice with Font-Ramirez and two others who were later indicted and charged as co-defendants: Ramon Mejias Negron (Mejias) and Jose A. Adorno Merced (Adorno). The first of these meetings took place in a parking lot. Font-Ramirez parked his car and approached Bouret, telling him that he was looking for buyers for a recent cocaine shipment. Font-Ramirez allegedly told Bouret that the cocaine was part of a larger shipment that had been brought to Puerto Rico on a ship called the Carla "C".
After this meeting, Bouret reported the conversation to an agent of the D.E.A. who arranged for surveillance of Font-Ramirez' mother's apartment. The second meeting took place in this apartment. During the meeting, Font-Ramirez allegedly showed Bouret four kilograms of cocaine contaminated with diesel fuel in clear plastic bags on an ironing board in a back room of the apartment. Font-Ramirez also allegedly led Bouret to a closet where a number of sealed bricks of cocaine were hidden in a black plastic garbage bag. Bouret carried a concealed micro-cassette recorder during this second meeting, and recorded incriminating conversations with the defendants.
Police executed a search warrant at the apartment on the evening of July 19th. There was some delay in entering and securing the apartment. After knocking and announcing their presence in English and Spanish, police attempted unsuccessfully to break down the back door, which was reinforced with a steel bar. During the delay, two police officers posted at the front and rear of the building saw cocaine bricks being thrown from fifth floor windows on three sides of the apartment. Font-Ramirez, Mejias, and Adorno were arrested inside the apartment after police finally gained entry through the front door. Seized along with the cocaine were scales and a loaded .357 caliber Magnum revolver.
Font-Ramirez was indicted on July 26, 1989. After the district court granted a motion to sever the case of co-defendant Adorno, Font-Ramirez and Mejias were tried together in February, 1990. At trial, the police informant, Bouret, testified in detail about his conversations with the defendants at the apartment. Bouret also described how Font-Ramirez showed him cocaine in the two different locations in the apartment. Through Bouret, prosecutors authenticated the tape recording of Bouret's conversations with the defendants. The tape and a transcript of the tape prepared by Bouret were admitted into evidence.
The balance of the government's case consisted of testimony by police officers who executed the warrant. In particular, one officer testified that he saw defendant Adorno drop a plastic bag of cocaine from a balcony in the front of the apartment building. At about the same time, another officer saw bricks of cocaine being thrown from windows on the left and right sides of the apartment.
The jury found both defendants guilty. On August 8, 1990, Font-Ramirez was sentenced to 360 months imprisonment based on a guideline base offense level of thirty-four and a two point enhancement for the presence of a firearm in the apartment, a two point enhancement for obstruction of justice, and a two point enhancement for Font-Ramirez' alleged leadership role in the offense. This appeal followed.
The appeal rests on five grounds. First, appellant argues that the district court erred in failing to grant a motion for severance. Second, appellant asserts that his indictment should have been dismissed for prosecutorial misconduct. Third, appellant contends that the district court erred in admitting into evidence tape recorded conversations between appellant and a government informant. Fourth, appellant argues that the Spanish transcript of the tape recording and its English translation should not have been given to the jury. Fifth and finally, Font-Ramirez contends that his sentence was improperly imposed in violation of the Sentencing Guidelines. For the reasons stated, we affirm the conviction and sentence.
Font-Ramirez first complains that his trial and conviction were unfair because of the district court's determination not to sever his case from that of his co-defendant, Mejias. In particular, Font-Ramirez argues that Mejias would have testified on his behalf if he had been able to do so without incriminating himself. By denying his motion to sever, Font-Ramirez contends that the district court denied him access to this exculpatory testimony.
The Federal Rules of Criminal Procedure permit the trial court to order separate trials of co-defendants as required in the interests of justice. Fed.R.Crim.P. 14; see United States v. Palow, 777 F.2d 52, 55 (1st Cir.1985), cert. denied, 475 U.S. 1052, 106 S.Ct. 1277, 89 L.Ed.2d 585 (1986). Because our review is under the abuse of discretion standard, reversal is warranted only where there is "a strong showing of prejudice." United States v. Luciano Pacheco, 794 F.2d 7, 8 (1st Cir.1986); United States v. Bautista, 731 F.2d 97, 100 (1st Cir.1984). In cases where a motion for severance is based on a professed need for a co-defendant's testimony, the moving party must demonstrate: "(1) a bona fide need for the testimony; (2) the substance of the testimony; (3) its exculpatory nature and effect; and (4) that the codefendant will in fact testify if the cases are severed." United States v. Drougas, 748 F.2d 8, 19 (1st Cir.1984).
In this case, Font-Ramirez filed an affidavit by co-defendant Mejias in support of his motion for severance. This affidavit asserted that Mejias was willing to testify and that his testimony would be beneficial to Font-Ramirez. The affidavit, however did not give the substance of the testimony and did not explain why the testimony was necessary or beneficial to the defense. 2 The Magistrate-Judge noted these deficiencies in a Report, accepted by the district court, that recommended denial of the motion to sever. This denial was obviously not an abuse of discretion.
In his second ground, Font-Ramirez argues that the district court erred in refusing to dismiss the indictment for prosecutorial misconduct. Although his brief is rather obscure, Font-Ramirez seems to argue that the prosecution's decision to seek an indictment based on hearsay evidence constituted misconduct. Appellant also asserts that the prosecution misportrayed Font-Ramirez' role in the offense by representing him as the owner of his mother's apartment. 3
Dismissal of an indictment is an extreme remedy, appropriate only in cases of "serious and blatant prosecutorial misconduct that distorts the integrity of the judicial process." United States v. Georgi, 840 F.2d 1022, 1030 (1st Cir.1988) (quoting United States v. Ogden, 703 F.2d 629, 636 (1st Cir.1983)). Even where misconduct is present, post-conviction dismissal of an indictment is a rare event, in large part because the petit jury's verdict ordinarily cures any failings in the grand jury process. See United States v. Rivera-Santiago, 872 F.2d 1073, 1088 (1st Cir.), cert. denied, 492 U.S. 910, 109 S.Ct. 3227, 106 L.Ed.2d 576 (1989); Porcaro v. United States, 784 F.2d 38, 44 (1st Cir.), cert. denied, 479 U.S. 916, 107 S.Ct. 320, 93 L.Ed.2d 293 (1986).
Font-Ramirez' argument fails because there was no hint of government misconduct in the case. Hearsay evidence is a sufficient basis for an indictment. Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956). There was no allegation or evidence that the hearsay testimony was misleading or otherwise warranted such an extreme remedy as dismissal of the indictment.
The witness' statement concerning Font-Ramirez' ownership of the apartment was, likewise, not misleading. Evidence at trial indicated that Font-Ramirez lived in the apartment whether or not his name was on the lease. The petit jury knew that the apartment belonged to Font-Ramirez' mother and found evidence sufficient to return a guilty verdict. Under these circumstances, appellant suffered no prejudice. The district court's decision not to dismiss the indictment was well within its discretion.
In his third argument, Font-Ramirez takes issue with the trial court's decision to allow into evidence the tape recording of incriminating conversations among the informant Bouret and the three defendants. At trial, Font-Ramirez raised a general objection, arguing that the tape should not have been played to the jury because the portions of the tape containing the defendants' side of the conversations were unintelligible.
We review the district court's decision to admit the tape recording under the abuse of discretion standard. United States v. Panzardi-Lespier,...
To continue reading
Request your trial
-
United States v. López-Martínez
...never made this showing. She failed at the first tier of the test, which proves fatal to her claim. See, United States v. Font-Ramírez, 944 F.2d 42, 45 (1st Cir. 1991), cert. denied, 502 U.S. 1065 (1992)(denying motion for severance where co-defendant's affidavit in support of the motion di......
-
U.S. v. Houlihan
...to rely on hearsay evidence in presenting its case before a grand jury raises "no hint of government misconduct." United States v. Font-Ramirez, 944 F.2d 42, 46 (1st Cir.1991), cert. denied, 502 U.S. 1065, 112 S.Ct. 954, 117 L.Ed.2d 122 (1992).19 When this inconsistency surfaced, the govern......
- United States v. Sampson
-
U.S. v. Pion
...the jury. The court treated the objection as a motion to strike, and denied it. There was no abuse of discretion. United States v. Font-Ramirez, 944 F.2d 42, 48 (1st Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 954, 117 L.Ed.2d 122 (1992) (no "abuse of discretion" where defendant neith......