U.S. v. Alvarez

• Decision Date: 02 November 1992
• Docket Number: Nos. 91-1286,91-1287,s. 91-1286
• Citation: 987 F.2d 77
• Parties: UNITED STATES, Appellee, v. Victor Manuel ALVAREZ, Defendant, Appellant. UNITED STATES, Appellee, v. Diana MATOS, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 77

987 F.2d 77

UNITED STATES, Appellee, v. Victor Manuel ALVAREZ, Defendant, Appellant.

UNITED STATES, Appellee, v. Diana MATOS, Defendant, Appellant.

Nos. 91-1286, 91-1287.

United States Court of Appeals First Circuit.

Heard Nov. 2, 1992.

Decided March 11, 1993.

Rachel Brill, Asst. Federal Public Defender, with whom Benicio Sanchez Rivera, Federal Public Defender, was on brief, for appellant Victor Manuel Alvarez.

Joseph C. Laws, Jr., by Appointment of the Court, for appellant Diana Matos.

Ivan Dominguez, Asst. U.S. Atty., with whom Daniel F. Lopez Romo, U.S. Atty., and Jose A. Quiles-Espinosa, Senior Litigation Counsel, were on brief, for appellee U.S.

Before TORRUELLA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and SKINNER, ^* Senior District Judge.

SKINNER, District Judge.

Appellants Victor M. Alvarez and Diana Matos, common law husband and wife, were convicted by a jury in the District of Puerto Rico for aiding and abetting several drug offenses. ¹ Miguel Flores, though not a party to this appeal nor convicted in the same trial, played a central role in the alleged cocaine trafficking scheme and pleaded guilty to the identical charges. Appellants defended against the charges alleging that they were unwitting participants in defendant Flores' cocaine trafficking scheme. Flores offered testimony to the same end. Each appellant advances numerous grounds for reversal.

Appellant Alvarez appeals his convictions alleging that the district court (1) erroneously refused to accept defendant Flores' guilty plea prior to the trial of Alvarez and Matos, (2) improperly prohibited Flores from testifying that his testimony exposed him to criminal penalties for cocaine trafficking, and (3) errored in denying appellant's motion for judgment of acquittal. We affirm with respect to Alvarez.

Appellant Matos joins the arguments of Alvarez and further appeals her convictions, alleging that the district court failed to exclude government evidence that was produced in violation of Rule 16, Federal Rules of Criminal Procedure. As to Matos, we reverse and remand to the district court for a new trial.

I. Evidence

We recite the evidence in the light most favorable to the prosecution. United States v. Campbell, 874 F.2d 838, 839 (1st Cir.1989). The evidence showed that on December 8, 1989, Victor M. Alvarez, Diana Matos, and Miguel A. Flores arrived at the Luis Munoz Marin International Airport, San Juan, Puerto Rico, on American Airlines flight 904 from Caracas, Venezuela. A U.S. Customs Inspector, Francis Aponte, noticed that the three individuals appeared to be nervous and were talking secretively among themselves. Inspector Aponte approached the individuals, made routine inquiries of them, and referred the group to the secondary inspection station (a table used to examine the contents of a passenger's luggage). At that time, appellant Alvarez was permitted to leave the customs enclosure to purchase airplane tickets to New York for each member of the group. Inspector Aponte testified on cross-examination that he had not made any written record of the group's suspicious behavior even though such information would have been an important part of the case report.

Carlos Ortiz, also a U.S. Customs Inspector, testified that he noticed two individuals, later identified as Flores and Matos, pushing two carts stacked with luggage and that he motioned for them to approach his secondary station. Inspector Ortiz requested Matos' and Flores' customs declaration cards, noting that both cards appeared to have been filled out by the same person. Matos complained that the airline had broken a bottle of liquor that she packed in her suitcase. During his search of the luggage, Ortiz noticed that the luggage contained both men's and women's clothing and he discovered a heavy, newspaper wrapped package. Ortiz unwrapped the package to find an aged painting of a young girl in a wooden frame. Ortiz asked Matos if she had purchased the picture on her trip, to which she answered "yes."

Inspector Ortiz consulted with a senior inspector, took the picture to a search room, and drilled into the picture frame using a small drill bit. Ortiz discovered a white powdery substance inside the wooden frame, which a field test indicated was cocaine. Matos and Flores were arrested and searched. Customs inspectors then located Alvarez in the airport's main concourse and placed him under arrest. Inspectors conducted a thorough search of the group's luggage, finding two additional paintings that concealed cocaine and discovering false bottoms in each of the six suitcases that also concealed cocaine. Customs agents determined that the group carried more than ten kilograms of cocaine.

A grand jury returned a three count indictment on January 3, 1990, against Matos, Alvarez, and Flores. Each defendant pleaded not guilty. On October 2, 1990, Flores filed a notice to plead guilty on one count of the indictment. It appears, however, that Flores intended to plead guilty on all three counts, and on October 5, 1990, he amended his petition accordingly. On October 5, 1990, the district court extensively questioned Flores before declining to accept his plea. Flores asserted that Alvarez and Matos had been unaware of any plan to import cocaine and that he, himself, was solely responsible for the crime. The judge suspended the proceeding because she was unsure whether Flores could plead guilty to aiding and abetting a crime while simultaneously proclaiming the innocence of the other alleged participants.

On October 9, 1990, the Flores plea hearing resumed. The judge explained that Flores' refusal to acknowledge the aiding and abetting modality did not preclude his guilty plea. The court then engaged in an extensive colloquy with defendant Flores in accordance with Rule 11 of the Fed.R.Crim.P. The judge noted that Flores had proclaimed the innocence of Alvarez and Matos in a confidential letter that Flores had written to the judge from prison. Flores confirmed sending the letter and explained that appellants were friends of his from New York, the home of all the parties. Flores had invited appellants to join him on a cruise from San Juan to several caribbean islands, including a stop in Caracas, Venezuela. While on the cruise, Flores met a man who offered him three thousand dollars to bring several pictures from Venezuela to Puerto Rico. Flores agreed to meet the man at a hotel in Caracas and to carry the pictures into Puerto Rico as a passenger on a commercial airline. Flores did not tell Alvarez or Matos of his scheme.

Flores, Alvarez, and Matos left the ship while it was in port in Caracas to visit the beach. Flores claimed to have tricked the appellants into missing the ship's scheduled departure because he did not want to fly to Puerto Rico alone. After missing the ship, Flores took Alvarez and Matos to the predesignated hotel, checked the group into two rooms, secretly picked up the pictures, and borrowed several pieces of luggage from the man after explaining that the group had left their bags on the cruise ship. Flores arranged to meet the man in Puerto Rico at which time Flores would deliver the pictures and return the borrowed luggage. Flores claimed that he never saw the cocaine or even knew for certain that he was carrying cocaine, ² but "imagined" that the frames concealed cocaine because "nobody is going to pay you three thousand dollars just to bring in three pictures." Flores also denied knowing that the borrowed suitcases concealed cocaine. Flores explained that Alvarez, Matos, and he purchased new cloths in Caracas and spent several days in the hotel before returning to Puerto Rico. Flores packed the three pictures in separate bags and covered them with cloths. Flores maintained that appellants were totally unaware of his trafficking scheme during the entire trip.

The district court declined Flores' plea, stating:

Now, you have stated that you did not know what was in the picture frames, you did not know what was in any of the luggage that you carried. That in itself carries with it a defense that you could present to the jury. So I am not convinced that you have made a plea of guilty that I could accept that has a basis in fact that contains all elements of the offenses charged which is a requirement for the court to accept your plea of guilty. Among those elements, those of knowledge and intent.

Flores then moved to sever his trial from that of the appellants. Finding that it would be impossible to mount an adequate defense if Flores testified in favor of Alvarez and Matos, the district court granted both the motion to sever Flores' trial and Flores' request to be tried after appellants.

At trial, Matos called Flores as a witness who offered essentially the same testimony as given to the judge during his attempted plea. During examination by Alvarez, Flores was permitted to testify that it was a crime to bring cocaine into the United States, but he was not permitted to testify as to the punishment that could be imposed for his crime or as to his aborted plea attempt. The jury found Matos and Alvarez guilty on all charges.

One week later, Flores again came before the district court to offer his guilty plea, but this time he admitted that he knew cocaine was concealed within the picture frames. The court accepted his plea.

II. Alvarez's Conviction

Appellant Alvarez attacks his conviction on three fronts. First, Alvarez alleges that his defense was prejudiced because the district court erroneously failed to accept defendant Flores' guilty plea prior to the trial of Alvarez and Matos. Alvarez claims the judge relied on "perceived technical deficiencies" with Flores' plea, rather than crediting the weight of Flores' testimony that indicated he accepted full responsibility for the crime. This error, Alvarez argues, prejudiced his defense because he was deprived of the opportunity to put Flores' guilty plea before the jury as persuasive...