U.S. v. Alvarez-Porras

• Decision Date: 10 February 1981
• Docket Number: D,188,ALVAREZ-PORRA,J,202,Nos. 181,s. 181
• Citation: 643 F.2d 54
• Parties: 8 Fed. R. Evid. Serv. 242 UNITED STATES of America, Plaintiff-Appellee, v. Luz-Estellaose Garcia-Perez, and Roberto Colon-Diaz, Defendants-Appellants. ockets 80-1198, 80-1211, 80-1234.
• Court: U.S. Court of Appeals — Second Circuit

Page 54

643 F.2d 54

8 Fed. R. Evid. Serv. 242

UNITED STATES of America, Plaintiff-Appellee, v. Luz-Estella ALVAREZ-PORRAS, Jose Garcia-Perez, and Roberto

Colon-Diaz, Defendants-Appellants.

Nos. 181, 188, 202, Dockets 80-1198, 80-1211, 80-1234.

United States Court of Appeals, Second Circuit.

Argued Sept. 24, 1980.

Decided Feb. 10, 1981.

Charles Lavine, Forest Hills, N. Y., for defendant-appellant Alvarez-porras.

C. Joseph Hallinan, Jr., New York City, for defendant-appellant Colon-Diaz.

Paul E. Warburgh, Jr., New York City (Axelrod & Warburgh, Charles F. Axelrod, New York City, of counsel), for defendant-appellant Garcia-Perez.

David V. Kirby, Asst. U. S. Atty., Eastern District of New York, Brooklyn, N. Y. (Edward R. Korman, U. S. Atty., Eastern District of New York, Harvey M. Stone, Asst. U. S. Atty., Brooklyn, N. Y., of counsel), for plaintiff-appellee United States of America.

Before MOORE and KEARSE, Circuit Judges, and TENNEY, District Judge. ^*

TENNEY, Senior District Judge:

Appellants were convicted after a jury trial in the United States District Court for the Eastern District of New York before Judge Jacob Mishler. They were found guilty of conspiring to import and distribute substantial quantities of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 846, 952(a), 960(a)(1), and 963. Appellant Luz-Estella Alvarez-Porras was sentenced to three years' custody and a special parole term of ten years. Appellant Jose Garcia-Perez was sentenced to eight years' incarceration and a special parole term of life. Appellant Roberto Colon-Diaz was sentenced to incarceration under 18 U.S.C. § 5010(b), the Youth Corrections Act.

In challenging their convictions, each of the appellants in this case raises an issue distinct from the others' claims. First, appellant Alvarez-Porras argues that her codefendants' statements should not have been accepted as her own admissions under the conspiracy exception to the hearsay rule because the government failed to link her to their conspiracy by a fair preponderance of the independent evidence, as required by United States v. Geaney, 417 F.2d 1116 (2d Cir. 1969), cert. denied, 397 U.S. 1028, 90 S.Ct. 1276, 25 L.Ed.2d 539 (1970), and its progeny. Second, appellant Colon-Diaz argues that, in determining his age for purposes of the juvenile offenders procedures in 18 U.S.C. §§ 5031-42, the trial judge improperly considered an otherwise suppressible statement made after an illegal arrest. Third, appellant Garcia-Perez argues that the fruits of a search of his apartment should have been suppressed because

the Drug Enforcement Administration (DEA) agents who conducted the search acted under the mistaken belief that a valid warrant, properly issued several hours later, had already been signed. ¹

BACKGROUND

The convictions on appeal grew out of a massive conspiracy to import cocaine from Colombia and to export American currency back to the South American drug suppliers. The prosecuting attorney presented records at trial documenting two million dollars in drug transactions, and he estimated that this drug ring handled $100,000 in narcotics per week. Trial Transcript ("Tr.") at 38, Joint Appendix ("App.") at 149. At the center of the operation was a woman named Cecilia Mesa-Valencia, who enlisted the aid of trusted friends and relatives, as well as their friends and relatives, who together constituted a close-knit group of confidantes for the conduct of criminal activities. A man named Jairo Aristozabal, also known as El Negro, was Mesa-Valencia's lieutenant for distributing cocaine in New York once it had been transported by overland courier from Miami, the point of entry into this country. Appellant Colon-Diaz was an assistant to El Negro, whose brother is appellant Garcia-Perez. Appellant Alvarez-Porras, allegedly a courier for the conspiracy, is the sister of a known courier who had carried a large supply of cocaine from Miami to New York in September 1979, a month before the appellants were arrested. Instrumental in making the government's case was Luis Alberto Castrillon, an informer who infiltrated Mesa-Valencia's inner circle and served as her driver for several months before the case was prosecuted.

Besides this cast of characters, a brief review of the facts will adequately set the stage for discussing the individual defendants' claims. Additional facts will be introduced where needed. Informant Castrillon came to know Mesa-Valencia in July 1979. Tr. at 99-100, App. at 172-73. By overhearing certain conversations at that time, he became aware of her narcotics business, Tr. at 101-05, App. at 174-78, and he asked her to sell him some cocaine, which she said would have to wait for another day. Tr. at 106-07, App. at 179-80. The following month, Castrillon was arrested and jailed from August 1 through 27, at which time Mesa-Valencia bailed him out. At trial, Castrillon stated that "(i)n return for the favor ... she want(ed) me to make a couple of sales for her." Tr. at 108, App. at 181. Already cooperating with the government, the informant agreed and in the fall began chauffeuring the members of the conspiracy on their appointed rounds. In September he drove several people to Virginia, Tr. at 109-11, App. at 182-83, and in early October he regularly drove Mesa-Valencia and her accomplices to spots in Manhattan and Queens where meetings were held, drugs were stored, and transactions were consummated. E. g., Tr. at 118, 121-25, 162-65, 257-63, 271-75, 290-97, App. at 184, 187-91, 196-98, 229-36, 240-44, 251-58. In one instance, Castrillon arranged for Mesa-Valencia to make a face-to-face sale to an undercover agent. Tr. at 305-11, App. at 265-71. As a result of the informant's efforts, the government identified and successfully prosecuted many members of Mesa-Valencia's ring. Some defendants pleaded guilty; others were convicted after a jury trial before Judge Mishler in the Eastern District of New York.

ALVAREZ-PORRAS AND THE GEANEY STANDARD

A criminal defendant's out-of-court statements, ordinarily barred by the hearsay rule, are admissible against him as nonhearsay under Federal Rule of Evidence ("Rule") 801(d)(2)(A), which exempts from the hearsay rule any "statement ... offered against a party" as an admission. United States v. Nixon, 418 U.S. 683, 701, 94 S.Ct. 3090, 3104, 41 L.Ed.2d 1039 (1974); United States v. Matlock, 415 U.S. 164, 172, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). Similarly, Rule 801 defines a coconspirator's statements as nonhearsay if made "during the course and in furtherance of the conspiracy." F.R.E. 801(d)(2) (E). See Glasser v. United States, 315 U.S. 60, 74-75, 62 S.Ct. 457, 86 L.Ed. 680 (1942). But such statements cannot be used to substantiate the underlying conspiracy, lest the prosecution be allowed to invoke an important hearsay exception by presenting only hearsay proof of the conspiracy itself. The government must first make "a sufficient showing, by independent evidence, of a conspiracy among one or more other defendants and the declarant," United States v. Nixon, supra, 418 U.S. at 701, 94 S.Ct. at 3104.

On this point, Judge Friendly wrote for the Second Circuit in United States v. Geaney, supra, that

the judge must determine, when all the evidence is in, whether in his view the prosecution has proved participation in the conspiracy, by the defendant against whom the hearsay is offered, by a fair preponderance of the evidence independent of the hearsay utterances.

417 F.2d at 1120. This standard, the court noted, is lower than the standard of evidence sufficient to submit a charge of conspiracy to the jury. Id. at 1119-20; United States v. Ragland, 375 F.2d 471, 477 (2d Cir. 1967), cert. denied, 390 U.S. 925, 88 S.Ct. 860, 19 L.Ed.2d 987 (1968); United States v. Ross, 321 F.2d 61, 68 (2d Cir.), cert. denied, 375 U.S. 894, 84 S.Ct. 170, 11 L.Ed.2d 123 (1963). Once the "threshold requirement for admissibility is satisfied by a showing of a likelihood of an illicit association between the declarant and the defendant," United States v. Ragland, supra, 375 F.2d at 477, the conspirators' statements are admissible and they "might tip the scale" in favor of the defendant's guilt, United States v. Geaney, supra, 417 F.2d at 1120. The principles laid out in Geaney have been adopted by subsequent cases following its lead. E. g., United States v. Cambindo Valencia, 609 F.2d 603, 631 (2d Cir. 1979), cert. denied, 446 U.S. 940, 100 S.Ct. 2163, 64 L.Ed.2d 795 (1980); United States v. DiPalermo, 606 F.2d 17, 21 (2d Cir. 1979), cert. denied, 445 U.S. 915, 100 S.Ct. 1274 (1980); United States v. Lyles, 593 F.2d 182, 194 (2d Cir. 1979), cert. denied, 444 U.S. 847, 100 S.Ct. 94, 62 L.Ed.2d 61 (1980); United States v. DeFillipo, 590 F.2d 1228, 1236 (2d Cir.), cert. denied, 442 U.S. 920, 99 S.Ct. 2844, 61 L.Ed.2d 288 (1979); United States v. Ziegler, 583 F.2d 77 (2d Cir. 1978).

In this case, the following facts support a finding by a preponderance of nonhearsay evidence that Alvarez-Porras was a member of the conspiracy:

(1) Her passport showed that she had arrived from Colombia on October 9, 1979, and had entered the United States at Miami, where the conspiracy brought in its cocaine. Tr. at 1786.

(2) She is the sister of a known courier. Tr. at 1788.

(3) Mesa-Valencia purchased a plane ticket to Colombia for Alvarez-Porras, and the appellant contributed toward that purchase. Tr. at 1789.

(4) In Alvarez-Porras' presence, Mesa-Valencia introduced her to the informant as the courier who had just "brought the stuff in from Colombia." All three were standing in close proximity at the time, and they were in the home of the woman who served as the conspiracy's banker. Tr. at 162-64, App. at 196-97.

(5) On the night of October 15, 1979, in the informant's presence, Mesa-Valencia asked appellant to accompany her "to get the package for his friend," to which Alvarez-Porras responded, "Yes, early in the morning." Tr. at 397-400, App. at 344-47.

Upon...