U.S. v. Alvarado

• Decision Date: 09 August 1989
• Docket Number: 444,Nos. 347,D,s. 347
• Citation: 882 F.2d 645
• Parties: 28 Fed. R. Evid. Serv. 721 UNITED STATES of America, Appellee, v. Noel ALVARADO and Mayra Sanabria, Defendants-Appellants. ockets 88-1319, 88-1320.
• Court: U.S. Court of Appeals — Second Circuit

Page 645

882 F.2d 645

28 Fed. R. Evid. Serv. 721

UNITED STATES of America, Appellee, v. Noel ALVARADO and Mayra Sanabria, Defendants-Appellants.

Nos. 347, 444, Dockets 88-1319, 88-1320.

United States Court of Appeals Second Circuit.

Argued Nov. 30, 1988.

Decided Aug. 9, 1989.

John P. Cooney, Jr. and Charles E.F. Millard, Jr., New York City for defendant-appellant, Noel Alvarado.

Robert Koppelman, New York City, for defendant-appellant, Mayra Sanabria.

Nelson W. Cunningham and Kerri L. Martin, Asst. U.S. Attys. for S.D.N.Y., New York City (Rudolph W. Guiliani, U.S. Atty. for S.D.N.Y., New York City, of counsel), for appellee.

Before VAN GRAAFEILAND, WINTER and MAHONEY, Circuit Judges.

MAHONEY, Circuit Judge:

Defendants-Appellants Noel Alvarado and Mayra Sanabria appeal from judgments of conviction entered upon a jury verdict in the United States District Court for the Southern District of New York Inzer B. Wyatt, Judge. ¹ The indictment charged both defendants in three counts: count one--conspiring to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. Sec. 846 (1982); count four--possessing approximately five ounces of a mixture containing cocaine, with intent to distribute it, in violation of 21 U.S.C. Secs. 812 (1982 & Supp. V 1987), 841(a)(1) (1982), 841(b)(1)(C) (1982 and Supp. V 1987) and 18 U.S.C. Sec. 2 (1982); and count five--using and carrying firearms during and in relation to the above crimes in violation of 18 U.S.C. Sec. 924(c) (1982 & Supp. V 1987). ² The jury convicted Alvarado on counts one, four and five, and Sanabria on counts one and four, but acquitted Sanabria on count five.

On appeal, Sanabria argues that her waiver of Miranda rights was coerced, and the resulting statements should therefore have been suppressed; and that the redaction of her statements, limitation of her cross-examination, and denial of her motion for severance deprived her of a fair trial. Alvarado contends that the introduction in evidence of testimony relating Sanabria's statements (after redaction by substituting the words "another person" for Alvarado's nickname) deprived him of a fair trial; that his motion for severance was improperly denied; that there was insufficient evidence to convict him on count five; and that his conviction on count five must be vacated as inconsistent with Sanabria's acquittal on that count in view of the identity of the evidence against them.

We affirm.

Background

The evidence at trial established that Hector Colon, a confidential informant for the Bureau of Alcohol, Tobacco & Firearms ("BATF"), made several visits to defendants' apartment at 2329 First Avenue in New York, New York in order to purchase cocaine. On the evening of November 10, 1987, Colon proceeded to the second floor apartment at that address, where he purchased a small quantity of cocaine from a youth named Alex for $45.00. On the evening of November 13, Colon returned and was met by defendant Mayra Sanabria, who opened the door. Alex then appeared and sold Colon 2.5 grams of cocaine for $125.00. On November 17, Colon returned for the third time, carrying photographs of two guns that he offered to sell. Alex answered the door, took one of the photographs, and sold Colon two packages of cocaine for $50.00. Colon observed Sanabria inside the apartment on this visit.

Colon returned to 2329 First Avenue on November 18 for the fourth time, where he was met by Alex in the front of the building and told that there was nothing to sell, and that he should return later. Upon Colon's return fifteen to twenty minutes later, Alex informed Colon that he would have to buy from one "Choco," who was selling for Alex in the street. Colon then purchased a bag of cocaine from Choco. The fifth time Colon returned, on November 19, defendant Noel Alvarado answered the door to the apartment. Alex immediately came to the door and directed Colon to buy from Choco in the street. Colon thereupon purchased two bags of cocaine from Choco.

On the evening of November 20, 1987, Colon returned with several BATF agents who had a warrant to search the apartment. After knocking and receiving no response, the agents broke in. Alvarado, Sanabria and Alex were found in the apartment. The search of the apartment revealed 108 grams of cocaine, glassine bags triple beam balance scales, heat sealers, strainers with a residue of white powder, a loaded pistol in a drawer, a bullet-proof vest, and a locked safe containing two loaded handguns and $2,980.00. The agents also recovered numerous papers and records, including Alvarado's birth certificate, Sanabria's automobile title, Alvarado's address book, two statements from a Holiday Inn in the name of "Mayra Alvarado" listing 2329 First Avenue, New York, New York as her address, and a Consolidated Edison bill for the apartment in Alvarado's name.

Alvarado, Sanabria, and the other alleged members of the conspiracy (Alex and Choco) were brought to BATF headquarters and questioned. Upon being taken from her holding cell, Sanabria waived her Miranda rights and was questioned for approximately thirty to forty-five minutes in the presence of three agents. Sanabria made statements which were presented to the jury by a BATF agent as follows:

Q. During that interview did she state to you in substance that she had told another person not to sell to the confidential informant because she thought she had seen him with a shield and thought that the confidential informant was a cop?

A. Yes.

Q. During that interview did she also state to you in substance that she had helped another person package the coke?

A. Yes.

Q. During that interview did she also state to you in substance that she knew the guns were in the apartment because she had played with them?

A. Yes.

Q. During that interview did she also state to you in substance that the main individual who supplied another person never dropped off the cocaine but would send one of the neighborhood teenagers as the runner?

A. Yes.

Q. Agent Polak, at or about the time of the interview was anything recovered from the defendant Sanabria?

A. Yes.

Q. What was that?

A. We asked her if she had any personal property besides jewelry and she displayed currency, United States currency. It was counted to be about $500.

She stated that she had obtained--

* * *

* * *

A. That she had obtained the money from another person by the holding cell.

Emphasis added.

During the actual questioning at BATF headquarters, Sanabria named "Scoobie," rather than "another person," in the four emphasized portions of the above testimony. "Scoobie" was Alvarado's nickname. The testimony concerning Sanabria's statements was redacted by substituting the phrase "another person" for "Scoobie" to avoid specifying Alvarado. ³

Prior to trial, Sanabria moved to suppress the above statements, claiming that they were coerced. The district court conducted an evidentiary hearing, found that Sanabria was advised of her rights and voluntarily waived them, and denied the motion in a written opinion on April 8, 1988. After considering the government's proposed redactions to Sanabria's statements (quoted above), the court also denied Alvarado's motion for severance in an order dated April 7, 1988. Subsequent applications for severance by Sanabria and Alvarado were also denied.

Neither Alvarado nor Sanabria testified at trial. During cross-examination of one of the BATF agents, Sanabria elicited the "possibility" that one of the agents told Sanabria at BATF headquarters that "if she does not cooperate she is going to get ten years, just like Scoobie." Sanabria also elicited on cross-examination of another BATF agent that someone in the apartment other than Sanabria opened the safe for the agents during the search.

Alvarado called one witness, who testified that she and Alvarado had a romantic relationship and that Alvarado was in fact living with her in the Bronx when the drug transactions charged in the indictment took place. On cross-examination, Alvarado's witness admitted that she did not know where Alvarado was when she was at work, and that sometimes he returned late at night to the allegedly shared apartment.

The trial lasted four days, with the jury returning a guilty verdict against Alvarado on counts one, four and five, and against Sanabria on counts one and four. The jury acquitted Sanabria on count five. Alvarado was sentenced to concurrent three-year prison terms on counts one and four, and a consecutive five-year prison term on count five. Alvarado also received a six-year term of supervised release on counts one and four to be served concurrently with a five-year term of supervised release on count five. In addition, fines totalling $2,500 on counts one and four were imposed upon Alvarado. Sanabria was sentenced to concurrent six-month terms of imprisonment on counts one and four, to be followed by a three-and-a-half year term of supervised release.

This appeal followed.

Discussion

The contentions of the parties have been outlined earlier herein. We consider first the separate claims of each defendant, and finally their contentions as to severance.

A. Sanabria's Claims

1. Voluntariness of Statements.

As indicated earlier, Sanabria did not testify at trial; nor did she testify at the pretrial suppression hearing. The primary testimony concerning the interview of Sanabria by BATF agents on November 20, 1987 was provided on both occasions by BATF agent Alina Sacerio-Polak. The more extensive testimony occurred at the pretrial suppression hearing, and was in substance that Sanabria was told that: she "had a daughter and ... it would be in her best interest to cooperate;" any "cooperation could be brought to the attention of the prosecuting attorney and the judge;" and "if she was to cooperate, it would be maintained ... as quiet as possible, but there is always a possibility that she would have to testify." Sacerio-Polak further testified that...