U.S. v. Alvarez, No. 83-5333

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: Before KRAVITCH and HATCHETT; KRAVITCH
• Citation: 755 F.2d 830
• Decision Date: 20 March 1985
• Docket Number: No. 83-5333
• Parties: , 53 USLW 2498, 17 Fed. R. Evid. Serv. 1181 UNITED STATES of America, Plaintiff-Appellee, v. Augustin ALVAREZ, Oscar Hernandez, Mario C. Simon, Rolando Rios, Ramon Raymond, Eduardo Portal, Victoriano Concepcion, a/k/a "Macho" Defendants-Appellants.

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755 F.2d 830 77 A.L.R.Fed. 613, 53 USLW 2498, 17
Fed. R. Evid. Serv. 1181 UNITED STATES of America, Plaintiff-Appellee,
v.
Augustin ALVAREZ, Oscar Hernandez, Mario C. Simon, Rolando
Rios, Ramon Raymond, Eduardo Portal, Victoriano
Concepcion, a/k/a "Macho" Defendants-Appellants. No. 83-5333. United States Court of Appeals,
Eleventh Circuit. March 20, 1985.

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Manuel Mari, Miami, Fla. (Court appointed), for A. Alvarez.

Nurik, O'Donnell & Lazarus, John F. O'Donnell (Court appointed), Fort Lauderdale, Fla., for O. Hernandez.

Anthony T. Carbone, Miami, Fla. (Court appointed), for M. Simon.

Thornton, Rothman, Adelstein & Moreno, Federico A. Moreno (Court appointed), Miami, Fla., for R. Rios.

Peter C. Clemente, Miami, Fla. (Court appointed), for R. Raymond.

Leon E. Tozo, Miami, Fla. (Court appointed), for E. Portal.

Humerto J. Aguilar (Court appointed), Fernandez Caubi, Fernandez & Aguilar, P.A., Miami, Fla., for V. Concepcion.

Stanley Marcus, U.S. Atty., Jon May, James G. McAdams, Linda Collins-Hertz, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Florida.

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Before KRAVITCH and HATCHETT, Circuit Judges, and HANCOCK ^*, District Judge.

KRAVITCH, Circuit Judge:

On December 2, 1982, in a run-down motel in the Little Havana section of Miami, Florida, a cocaine deal turned into tragedy when a shoot-out erupted between the dealers and two undercover special agents from the Bureau of Alcohol, Tobacco, and Firearms (BATF). During the shoot-out, one of the BATF agents was killed and the other agent, along with two of the cocaine dealers, was seriously wounded. Appellants Augustin Alvarez, Mario Simon, Victoriano "Macho" Concepcion, Eduardo Portal, Oscar Hernandez, Ramon Raymond, and Rolando Rios were convicted after a trial by jury on various charges arising from the cocaine deal and shoot-out. All of the appellants were convicted of conspiracy to possess with intent to distribute cocaine, 21 U.S.C. Sec. 846, and possession with intent to distribute cocaine, 21 U.S.C. Sec. 841(a)(1). In addition, Alvarez and Simon were convicted of first degree murder of a federal agent, 18 U.S.C. Secs. 1111(a) and 1114, assault on a federal agent by means of a deadly and dangerous weapon, 18 U.S.C. Secs. 111 and 1114, and use of a firearm to commit a felony, 18 U.S.C. Sec. 924(c)(1). Portal, Concepcion, and Hernandez were convicted of second degree murder of a federal agent, 18 U.S.C. Secs. 1111(a) and 1114, and assault on a federal agent by means of a deadly and dangerous weapon, 18 U.S.C. Secs. 111 and 1114.

The appellants now appeal their respective convictions, raising numerous claims of error. Among the issues raised by this appeal are (1) whether BATF agents are protected under 18 U.S.C. Sec. 1114, (2) whether the district court committed plain error by instructing the jury that the government was not required to prove that the appellants knew that their victims were federal agents, and (3) whether the second degree murder and assault convictions of Portal, Concepcion, and Hernandez were based on an improper extension of Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). After careful consideration of these issues and the others raised by the appellants, we conclude that the district court did not commit reversible error and the appellants received a fair trial in every respect. We therefore affirm the appellants' convictions.

I. FACTS

On December 1, 1982, at about 6:00 p.m., BATF Special Agents Joseph Benitez, Joseph Tirado, Ariel Rios, and Alex D'Atri, each acting in an undercover capacity, met with appellants Rolando Rios and Ramon Raymond in the parking lot of a convenience store in Homestead, Florida. The purpose of the meeting was to continue previously initiated negotiations for the purchase of two kilograms of cocaine. Raymond informed the agents that he had obtained a source for the cocaine, but that delivery would be delayed by about a half hour. Raymond attempted to telephone his cocaine source but was unsuccessful. Agent Tirado then asked appellant Rios if he knew when the cocaine would be delivered. Appellant Rios also attempted to telephone the cocaine source but, like Raymond, was unsuccessful. Appellant Rios asked Agents Rios and Tirado to take him to the source's residence. The three men drove to a house about two miles away, but, finding no one there, returned to the parking lot. Meanwhile, Raymond continued to assure the remaining agents that the cocaine would be delivered shortly. At one point, Raymond suggested that the deal be moved across the street because he thought that there were too many cars in the parking lot.

A short time later, appellant Eduardo Portal arrived at the parking lot and began speaking with appellants Rios and Raymond. Portal informed Agents Rios, Tirado,

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and Benitez that he could make immediate delivery of two kilograms of cocaine. Portal then made a telephone call to appellant Victoriano "Macho" Concepcion. After the call, Portal told the agents that delivery of the cocaine could be made by noon the next day. The agents departed after agreeing to call Concepcion the next morning to arrange the details of the cocaine delivery. ¹

The next day, at about 12:00 noon, Agent Rios telephoned Concepcion and arranged to meet with Concepcion and Portal in the parking lot of a restaurant in the Little Havana section of Miami. Agents Rios and D'Atri met with Concepcion and Portal shortly before 2:00 p.m. D'Atri told Concepcion that he wished to purchase three kilograms of cocaine. Concepcion answered that the cocaine was available at a price of $49,000 per kilogram. The four men left the restaurant parking lot and proceeded, in two separate cars, to the Hurricane Motel on West Flagler Street in Miami. The agents advised their surveillance team of their destination by means of a portable radio concealed in their car.

Shortly after 2:00 p.m., Agents Rios and D'Atri and appellants Concepcion and Portal arrived at the Hurricane Motel. Concepcion advised the agents that only one of them would be allowed inside the motel to complete the deal. The agents refused to proceed under those circumstances, and Concepcion agreed to allow both agents to be present. Concepcion and the two agents entered the motel office, while Portal remained outside. Surveillance agents stationed near the motel observed Portal acting as a "lookout." The agents saw Portal closely watching passing cars and pedestrians, and noticed a handgun-shaped bulge on Portal's left side, under his shirt.

Inside the motel office, Concepcion and the two agents met appellants Augustin Alvarez and Oscar Hernandez. Hernandez was the manager of the Hurricane Motel, and Alvarez and Hernandez shared an apartment that adjoined the motel office. Alvarez told the agents that he was not the cocaine source, but that he would make a telephone call and arrange the cocaine delivery. Alvarez made the call and informed the agents that the cocaine would be delivered shortly. The five men waited in the living room of the Alvarez-Hernandez apartment. While they waited, Alvarez and Agent Rios conversed in Spanish, with Agent Rios translating into English for Agent D'Atri's benefit. According to D'Atri's testimony at trial, Alvarez stated, "In this business, you have to be careful. It's a dangerous business. You have to watch out for rip-offs and Federal agents." Alvarez also stated that he would never go back to prison, and that he would rather be dead than go back to prison. D'Atri answered, "It's always better to be alive than in prison." Alvarez then spoke to Hernandez in Spanish, and D'Atri asked Hernandez what Alvarez had said. Hernandez replied that Alvarez had said that he could never go back.

After twenty or twenty-five minutes, D'Atri decided to make a telephone call to let the surveillance team know that the cocaine deal was still pending. D'Atri asked Hernandez for permission to use the telephone. Hernandez spoke to Alvarez in Spanish, and then indicated that D'Atri could use the telephone in the motel office. After completing the telephone call, D'Atri returned to the living room and joined the other men in general conversation. At one point, Alvarez went into a bedroom, got a sample of cocaine, and asked D'Atri if he wanted to test the sample. D'Atri replied that he wanted to test the cocaine that was about to be delivered, not Alvarez' sample.

After twenty more minutes, D'Atri, who was becoming increasingly concerned about the prolonged delay, announced that he and Agent Rios were leaving. Hernandez said, in English, "Don't worry, he's coming. If he says he's coming, he will be here." At the same time, appellant Mario

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Simon drove into the motel parking lot. Hernandez said, "He's here," and the men all laughed. Simon entered the living room, ² and D'Atri asked him whether he had the three kilograms of cocaine. Simon answered, in English, "I have to make a phone call." After making the call, Simon told the agents that he could deliver the cocaine, but that it would take one hour. He also said that he would deliver one kilogram of cocaine at 4:00 p.m., and one kilogram every hour after that. The agents agreed to return to the motel in about one hour. ³

Agents Rios and D'Atri drove to a nearby restaurant and met with Special Agent Michael Casali, one of the members of the surveillance team. During the meeting, Agent Rios expressed concern about a leather pouch carried by Simon, which Agent Rios thought might contain a weapon. The agents then discussed their plans for effecting the intended drug arrests. The agents decided to place $50,000 in the trunk of their car. Once the cocaine was delivered, Agent Rios would go out to the motel parking lot and remove the money from the trunk. Upon observing this signal, the surveillance and backup agents would wait forty-five seconds...