U.S. v. Aguiar, 1917
| Citation | 975 F.2d 45 |
| Decision Date | 10 September 1992 |
| Docket Number | D,No. 1917,1917 |
| Parties | UNITED STATES of America, Appellee, v. Andres AGUIAR, Defendant-Appellant. ocket 92-1168. |
| Court | U.S. Court of Appeals — Second Circuit |
Jeremy Gutman, New York City, for defendant-appellant.
Susan Corkery, Asst. U.S. Atty., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty., E.D.N.Y., Emily Berger, and A. Ross Pearlson, Asst. U.S. Attys., of counsel), for appellee.
Before: WINTER, MINER and McLAUGHLIN, Circuit Judges.
Andres Aguiar appeals from his convictions after a jury trial in the Eastern District of New York before Judge Johnson for conspiring to import heroin into the United States in violation of 21 U.S.C. § 963 (1988), importing heroin into the United States in violation of 21 U.S.C. §§ 952(a) and 960 (1988), and possessing with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1) (1988). Aguiar also appeals from a conviction for witness-tampering in violation of 18 U.S.C. § 1512(b)(1) (1988). We affirm.
On June 25, 1991, George Albino was arrested at John F. Kennedy Airport when heroin was found in his luggage. Albino agreed to cooperate and told authorities that he was to deliver the narcotics to a "Henry" in the public area of the International Arrivals Building. (A subsequent check revealed that Aguiar was also known as Henry Delgado.) Equipped with a concealed tape recorder, Albino approached Aguiar. Aguiar asked in Spanish if everything was okay and where the bag was. Albino responded affirmatively, and Aguiar then picked up the suitcase containing the heroin and was shortly arrested.
Albino subsequently entered into a plea agreement. He was interviewed pursuant to this agreement by Joint Narcotics Smuggling Unit Special Agent Peter Amentas and Assistant United States Attorney Andrew Weissmann. Albino stated that Aguiar had hired him to go to Brussels to obtain the heroin. Aguiar had made Albino's travel arrangements, obtained his passport, paid his expenses, and agreed to pay him five to six thousand dollars upon delivery of the heroin. Albino also stated that, after the arrest, Aguiar told him to deny everything and to say that Aguiar was just a taxi driver.
On October 3, 1991, however, Albino told the government that he no longer wanted to cooperate. The following day he changed his mind again and explained that he had received written and verbal threats from Aguiar. He also expressed concern about his family's welfare. Albino gave Amentas one of the letters he had received from Aguiar. That letter threatened to expose criminal conduct by Albino, including murder. It urged Albino to "act quick and contact [his] lawyer to clear" Aguiar.
On October 7, Albino again refused to cooperate and withdrew from his plea agreement. On October 11, pursuant to a search warrant, agents found two threatening letters in Albino's cell. The first letter was from "a very good friend of Andy" who wrote that Albino would be convicted of murder and that other prisoners would be told that Albino was an informer. The second letter, which was unsigned but contained Aguiar's fingerprints and is thus attributable to him, stated that if Albino cleared Aguiar, Albino would not have to worry about the evidence of his state crimes. The letter also advised Albino to falsify his testimony, or so the jury could easily have found. Albino, even though he was granted immunity and faced civil and criminal contempt charges, refused to testify for the government or in Aguiar's defense.
At trial, the government sought to introduce Albino's prior statements to Amentas and Weissmann. Pursuant to United States v. Mastrangelo, 693 F.2d 269 (2d Cir.1982), the court held a hearing to determine whether Aguiar procured the unavailability of Albino. The government produced evidence of the events detailed above. Aguiar introduced a letter in Albino's handwriting, supposedly delivered to Aguiar in August but not given to Aguiar's attorney until the beginning of trial on November 12, 1991, in which Albino stated that he had falsely incriminated Aguiar. The district court held that Aguiar had procured Albino's unavailability and thereby waived his confrontation rights and hearsay objections. The court then admitted Albino's hearsay statements to Amentas and Weissmann as evidence.
Aguiar claims that his due process rights were violated by the introduction of Albino's hearsay statements. We disagree. In Mastrangelo, we held that where, after a hearing, a district court determines by a preponderance of the evidence that a defendant procured the absence of a witness, the defendant will be...
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