U.S. v. Arache
| Decision Date | 06 June 1991 |
| Docket Number | No. 90-1874,90-1874 |
| Citation | 946 F.2d 129 |
| Parties | UNITED STATES, Appellee, v. Frank ARACHE, Defendant, Appellant. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
George F. Gormley, by appointment of the Court, with whom Jackie Lynn Segel and Law Office of George F. Gormley were on brief, for defendant-appellant.
Margaret E. Curran, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., and Lawrence D. Gaynor, Asst. U.S. Atty., were on brief, for appellee.
Before SELYA and CYR, Circuit Judges, and STAHL, * District Judge.
Following a trial in the United States District Court for the District of Rhode Island, defendant-appellant Frank Arache was convicted of three drug trafficking offenses. His co-defendant, Wanda DeJesus, who had been charged with the same offenses, was convicted of conspiracy. 1 Subsequently, presiding Judge Ronald Lagueux denied each defendant's motions for new trial and judgment of acquittal. Upon a weekend's reflection, Judge Lagueux decided, sua sponte, to reconsider those motions. At a hearing convened four days after the close of trial he granted Ms. DeJesus' motion for judgment of acquittal. Although Judge Lagueux refused to acquit Arache, he noted inconsistencies in testimony given by government witnesses and then granted Arache's motion for a new trial.
After a subsequent trial before the Honorable Ernest Torres, a second jury found Arache guilty of trafficking in cocaine base (crack) and cocaine. Although Judge Torres also expressed concern about the reliability of testimony by the same government witnesses, he nevertheless denied Arache's motion for a new trial and sentenced Arache to 151 months of imprisonment followed by five years of supervised release.
Arache appeals, asking that this court: (a) reverse his conviction and order his acquittal; (b) remand the case to Judge Lagueux for clarification of his rulings after the first trial; or (c) order a new trial without the asserted untrustworthy government testimony. In addition, Arache contends that Judge Torres should have reduced the guideline offense level under which he was sentenced, since the evidence showed that he was a "minor" or "minimal" participant in the trafficking crimes.
For the reasons explained below we are not persuaded that Arache's conviction should be reversed, that clarification of Judge Lagueux's rulings is required or that a new trial should be granted. Finally, Arache has failed to persuade us that there was error in the sentence imposed. Accordingly, we affirm.
Frank Arache and his common-law wife, Wanda DeJesus, were indicted on August 17, 1989, charged with: (1) conspiracy to distribute and possess with intent to distribute crack and cocaine; (2) possession with intent to distribute a specified amount of crack; and (3) possession with intent to distribute an unspecified amount of cocaine. Evidence from their joint trial is summarized below.
On July 28, 1989, at approximately 2:30 in the afternoon, a group of eight police officers went to an apartment at 187 Bridgham Street in Providence for the purpose of executing a search warrant. Upon arrival the search team split, with some of the officers attempting to enter through the front door of the apartment and the others proceeding to a side door. The officers at the front door knocked, identified themselves as police and, upon hearing a commotion inside, began to batter the locked door with a ram. They were unable to open the front door.
The officers at the side door noticed the lock being turned. When the door opened, the officers confronted Wanda DeJesus and Frank Arache. All eight officers entered the apartment through the side door.
Once inside the premises the search began. Nothing of significance was discovered during the first half hour. Then, as Nicholas Cardarelli, lead investigator (and first witness at the trial) explained,
... I just knew there was something in this apartment. Call it instinct or whatever, so I walked back into the bedroom area and myself and Detective Jeff Ward was alongside of me, so at that time I noticed that closet again, I'm looking at the closet, and I'm looking at the door, and I've had previous experience in carpentry work, and as I looked at this door I said out loud, actually saying it to myself, not saying it to anyone else, this door doesn't look right. So what I did is I opened the door a little more, and on what would be the doorknob side, not the hinged side, I noticed two cuts in the side of the door if you're looking at the edge of the door, I noticed two cuts. So at that point, I noticed the facing of the door, and I noticed like small little screws and nails, which doors are not built with. If you look at your own doors, you're going to see that doors are not built that way. So I started pulling the plywood off the door, the facing, and I pulled one piece off and I noticed it was hollow, so I continued to rip the plywood off the door, and bingo, I noticed a compartment in the door. Those two little cuts were actually a compartment that slid inside the door.
The compartment was two and one-half inches wide, six to seven inches deep, and approximately two and one-half feet long. Officer Cardarelli testified that the box contained a number of plastic bags which he suspected were filled with crack cocaine. He further observed "another plastic bag which contained smaller plastic bags, little envelope type plastic bags, that were green in color, of powder cocaine," some United States currency, and a small leather pouch. Officer Cardarelli stated that he found "a clear white piece of paper with nothing on it" inside the pouch.
Cardarelli testified that he placed the pouch on the bed, put the box under his arm, retrieved a camera from his car, returned to the apartment, placed the box back in the door and took pictures. He then searched Frank Arache, who was being held in the apartment's parlor. Cardarelli testified that he seized a set of keys from Arache's right front pocket, one of which fit a padlock on the apartment's front door. From the kitchen table Cardarelli also seized three pieces of mail, none of which were addressed to either DeJesus or Arache.
Upon returning to his office Cardarelli placed the box on his desk and began to investigate its contents. In addition to inspecting the bags of crack cocaine and powder cocaine, Cardarelli counted a total of $676 in one, five, ten and twenty dollar bills. Cardarelli also testified that he found two especially significant pieces of evidence folded in with the bills: a photograph of Wanda DeJesus and an identification card with Frank Arache's picture on it.
On cross-examination Cardarelli was asked to explain why his original report failed to indicate that he found the identification card inside the box. Cardarelli answered:
Providence police detective Jeffrey Ward, the second state witness, testified that he helped Officer Cardarelli disassemble the door and saw "numerous vials in plastic bags" and "some money" inside the box. Detective Ward testified that he did not see Officer Cardarelli seize the set of keys from Arache.
Police officer Robert Garvin, another member of the search team whose job it was to "secure the prisoners," testified that Detective Cardarelli entered the living room area (where Garvin had moved Arache so the kitchen could be searched) and that Cardarelli displayed the box to the defendants, Garvin and other detectives. Garvin testified that he saw only packages of drugs protruding from the box. He also testified that, with that single exception, Officer Cardarelli did not come near Frank Arache.
Subsequently, Garvin was recalled by the prosecution. This second time he modified a significant detail of his prior testimony explaining that he saw Cardarelli search Arache
[H]e reached into the defendant's pocket and he removed a set of keys, and with those keys he was able to unlock a chain lock which was through the front door, and we exited the building through--by that way.
On cross-examination Arache's counsel asked the following:
Q Detective Garvin, do you remember just testifying about five minutes ago in this case?
A That's correct.
Q And do you remember being asked by me on four occasions whether or not Detective Cardarelli ever approached Mr. Arache?
A Yes.
Q And do you remember on each one of those occasions, under oath, saying no? You remember that?
A I said no, that's correct.
Q And do you remember that that one time when you left the company of Mr. Arache, you said he was with other detectives, you remember that?
A That is correct.
Q And I said was one of them Detective Cardarelli, and you said no?
A Not at that time, no.
Q You remember giving those answers under oath?
A Yes, I do.
Q Now, now you testify that you forgot about the keys, is that right?
A That is correct.
Q Did you have some conversations with anyone when you left the witness stand?
A No, I didn't.
Following the conclusion of the government's case each defendant moved for judgment of acquittal. Both motions were denied.
Wanda DeJesus then took the witness stand and testified that she and Frank Arache came to Rhode Island for a vacation on July 7, 1989, and stayed with a friend on Eddy Street in Providence. On July 28 (the day they were arrested), they met a "young man" (whose name Ms. DeJesus could not remember) who invited them "to go out for a ride." They stopped to buy food and then went to 187 Bridgham Street, a place Ms. DeJesus had never before visited.
Shortly after their arrival at the Bridgham Street house, another man arrived to see the young man. The two went out, after telling DeJesus and Arache they would return shortly. Within a half hour the police arrived.
Ms. DeJesus gave testimony that contradicted the police version in two significant ways. First, she claimed that she saw the...
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