U.S. v. Arboleda, s. 90-1374

• Decision Date: 04 March 1991
• Docket Number: 90-1375 and 90-1524,Nos. 90-1374,s. 90-1374
• Citation: 929 F.2d 858
• Parties: 32 Fed. R. Evid. Serv. 1164 UNITED STATES, Appellee, v. Carlos ARBOLEDA, Defendant, Appellant. UNITED STATES, Appellee, v. Martin CASTILLO, Defendant, Appellant. UNITED STATES, Appellee, v. Jecennia C. ORELLANA, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 858

929 F.2d 858

32 Fed. R. Evid. Serv. 1164

UNITED STATES, Appellee, v. Carlos ARBOLEDA, Defendant, Appellant.

UNITED STATES, Appellee, v. Martin CASTILLO, Defendant, Appellant.

UNITED STATES, Appellee, v. Jecennia C. ORELLANA, Defendant, Appellant.

Nos. 90-1374, 90-1375 and 90-1524.

United States Court of Appeals, First Circuit.

Heard March 4, 1991.

Decided April 8, 1991.

Jeffrey Denner with whom Denner & Associates and Richard Abbott were on brief, for defendant, appellant Arboleda.

Willie J. Davis with whom Davis & Robinson were on brief, for defendant, appellant Castillo.

Andrew P. McEvoy, for defendant, appellant Orellana.

Jean B. Weld, Asst. U.S. Atty., with whom Jeffrey R. Howard, U.S. Atty., and Douglas Cannon, Asst. U.S. Atty., were on brief, for appellee.

Before SELYA, Circuit Judge, ALDRICH and BOWNES, Senior Circuit Judges.

BOWNES, Senior Circuit Judge.

Defendants-appellants Carlos Arboleda, Jecennia Orellana and Martin Castillo appeal their convictions of charges of conspiracy to distribute and to possess with intent to distribute cocaine. They raise a number of issues, some of which are pertinent only to individual defendants and others pertaining to several. ¹ All of the issues were briefed either directly or by adoption. We affirm the judgment below in all respects.

I. THE EVIDENCE

The evidence against the defendants at trial was based primarily on the testimony of convicted drug dealers testifying pursuant to cooperation agreements with the government. Reviewing the evidence, as we must, in the light most favorable to the government, we summarize the facts most pertinent to the issues on appeal.

The defendants were charged with participating in a drug conspiracy ² during the period between January 1982 and November 1988. Joseph Lodise, originally charged as a conspirator but ultimately pleading guilty, testified that from 1982 to 1987 he had bought cocaine from Arboleda for resale nearly a hundred times. Customarily, he picked up the cocaine at the Raymond, New Hampshire, home of Arboleda and Orellana, who was Arboleda's girlfriend, and at the Plains Community Center, a health club in Lawrence, Massachusetts. On one specific occasion, he telephoned Arboleda's house and arranged a purchase of two ounces of cocaine with Orellana. He picked up the cocaine from her and later paid her for it. As for his dealing with Castillo, Lodise described two occasions on which he accompanied Arboleda to meet with Castillo so that Arboleda could collect payment from Castillo for drugs previously sold to him. He also testified about events surrounding an arrest of himself, Arboleda and Castillo in Lawrence for marijuana possession, which we discuss in Part III.

Peter Mical, another convicted drug dealer cooperating with the government, testified about numerous drug transactions with and on behalf of Arboleda from 1981 to 1985. In addition to making regular cocaine purchases from Arboleda for resale, Mical also made deliveries of the drug for him. On one occasion, Arboleda had instructed Mical to obtain a kilogram of cocaine from Castillo that Castillo had received from Arboleda. At Arboleda's direction Mical delivered a portion of the kilogram to Lodise. Mical also made five to ten road trips to Homestead, Florida, on Arboleda's behalf to pick up a total of ten to twelve kilograms of cocaine from Arboleda's brother George. The last of these trips took place in September 1985 just prior to Hurricane Gloria.

Another customer of Arboleda's, convicted drug dealer Fred Shaheen, testified that he had been dealing drugs in New Hampshire for several years before meeting Arboleda, whom he approached as a source for cocaine in the spring of 1987. Arboleda agreed to sell him twenty-four ounces of cocaine in exchange for Shaheen's Porsche. On several occasions, Shaheen saw Arboleda deliver kilograms and half kilograms of cocaine.

Brian Riberdy, convicted in Florida of federal drug and weapons offenses, also sold cocaine that he purchased from Arboleda on thirty or forty occasions from 1984 to 1987. He testified that he had also been a customer of Peter Mical's and accompanied Mical on the September 1985 trip to Florida for Arboleda. Riberdy was in partnership with Jean Lemieux of Salem, New Hampshire, and bought cocaine for himself and Lemieux to deal. On one occasion during this period, Riberdy saw fifteen kilograms of cocaine hidden in the woods adjacent to Arboleda's house. In February 1987 Riberdy was arrested in Florida and contacted Arboleda in New Hampshire for assistance in raising bail. Although Arboleda said he would "send someone down," ultimately he was no help. When Riberdy later asked Arboleda why he had not sent the money as promised, Arboleda told him that he had been arrested in Lawrence along with Lodise and that the police had confiscated the $17,000 earmarked for Riberdy's bail.

The last drug-dealer witness to testify was Jean Lemieux, a convicted co-conspirator, who had been named in the original indictment. Lemieux testified that Riberdy had introduced him to Arboleda as Riberdy's source. Lemieux bought kilos of cocaine from Arboleda into 1988. On two occasions in 1988 he picked up a kilo of cocaine from Orellana at Arboleda's direction. In September 1988 Lemieux sold the second of these two kilos to Salvatore Ragonese, a former drug partner of Fred Shaheen. Ragonese made this drug purchase as a controlled buy for the DEA. This kilo of cocaine was introduced into evidence at the trial.

Other evidence at trial served mainly to corroborate the testimony of the co-conspirator witnesses. For example, long distance telephone toll records showed calls between Lemieux's home and the Arboleda-Orellana home during August and September 1988, the period of the controlled drug purchase. The Fort Lauderdale Holiday Inn guest registration card of Peter Mical showed him at the hotel from September 22 to September 26, 1985, supporting his testimony about the trip he took for Arboleda at that time.

II. DELAYED DISCLOSURE OF IMPEACHMENT MATERIAL

The defendants claim that dismissal of their indictments is required because of what they characterize as the government's repeated and pervasive violations of its discovery and Jencks Act obligations. This argument rests generally on the ground that certain rough notes and reports of government interviews with witnesses Shaheen, Riberdy, Mical and Lemieux, and transcripts of Riberdy's testimony in unrelated Florida trials, were not disclosed pretrial pursuant to a discovery order of the court. Instead, this material was turned over to the defense before and during cross-examination of the various witnesses. ³ Although Arboleda and Orellana advert in their briefs to specific information purportedly disclosed untimely by the prosecution, we understand their claim to be one of prosecutorial misconduct through a pattern of continuous discovery violations. We therefore treat the complaint generically, discussing specific allegations where necessary.

The Jencks Act provides:

In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of subpena [sic], discovery, or inspection until said witness has testified on direct examination in the trial of the case.

18 U.S.C. Sec. 3500(a). As this court has explained: "In order to meet the requirements of the Act, the material must be a written statement signed, adopted or approved by the prosecution witness which relates to the subject matter of the witness's testimony." United States v. Sorrentino, 726 F.2d 876, 887 (1st Cir.1984). Because the Jencks Act is designed to provide the defense access to impeachment material, United States v. Izzi, 613 F.2d 1205, 1213 (1st Cir.), cert. denied, 446 U.S. 940, 100 S.Ct. 2162, 64 L.Ed.2d 793 (1980), critical to our analysis of alleged violations is whether the timing of the disclosures of the material prevented its effective use by the defense. Id. See United States v. Devin, 918 F.2d 280, 299 (1st Cir.1990) (impeachment evidence). We begin by sketching the manner in which the putative Jencks material was generally revealed.

During cross-examination of the government witnesses, counsel for Arboleda, lead trial counsel, elicited that the witnesses had been interviewed by various government agents--e.g., DEA, New Hampshire State Police, prosecutors. He claimed that the interviews generated Jencks Act "statements." Pursuant to pretrial agreement between the parties and a discovery order, Jencks material was to have been disclosed one week prior to trial. Although the agreement, discovery order, and the government's open-file policy had given defense counsel pretrial access to voluminous documents, including witness statements, grand jury transcripts, plea agreements and other promises to witnesses, the material revealed on cross-examination had not been produced. By way of explanation to the trial court for the non-production, the government represented that in some instances the prosecution itself had been unaware of the existence of the material ⁴ and that in others it did not consider the material to be substantially verbatim witness statements within Jencks. ⁵ As to the latter, the government had provided written notice of its intent to resist production in its response to the defendants' third motion to dismiss, filed months before. ⁶

When the issue thus surfaced at trial, the additional material was located and delivered to the trial court for in camera examination. Voir dire was conducted of interviewing agents with respect to their rough notes. The court then ordered the government to turn over to the defense the bulk of the reports, notes and transcripts, withholding only small portions it found nondiscoverable. ⁷ As new material was disclosed, the court, denying defense motions for...