U.S. v. Badia, 86-5625

• Decision Date: 21 September 1987
• Docket Number: No. 86-5625,86-5625
• Citation: 827 F.2d 1458
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Milton BADIA, a/k/a "El Americano", a/k/a "Milton Vadis", Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1458

827 F.2d 1458

UNITED STATES of America, Plaintiff-Appellee, v. Milton BADIA, a/k/a "El Americano", a/k/a "Milton Vadis" Defendant-Appellant.

No. 86-5625.

United States Court of Appeals Eleventh Circuit.

Sept. 21, 1987.

William A. Meadows, Jr., South Miami, Fla., George T. Pallas, Miami, Fla. (Co-counsel for oral argument only), for defendant-appellant.

Leon B. Kellner, U.S. Atty., and Frederick Mann, Daniel S. Gelber and Linda Collins Hertz, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

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

Before JOHNSON and CLARK, Circuit Judges, and MORGAN, Senior Circuit Judge.

CLARK, Circuit Judge:

Milton Badia appeals his conviction for conspiracy to manufacture firearms without the approval of the Secretary of the Treasury or his delegate, as required by 26 U.S.C. Sec. 5822, in violation of 26 U.S.C. Secs. 5861(f), 5871 (1982). Appellant argues before this court that the district court should have (1) suppressed evidence derived from the electronic surveillance of his co-defendant, (2) permitted him to proceed with his defense of CIA involvement; (3) granted his motions for severance; (4) granted his motions acquittal because the evidence was insufficient to support a guilty verdict. Finding no merit to any of these contentions, we affirm.

In 1984, Badia was charged with participation in a conspiracy to manufacture machine guns and silencers without the requisite approval of the Secretary of the Treasury, and to possess unregistered firearms, in one count of a multi-count superseding indictment. The same indictment charged Eduardo Arocena with the conspiracy count and eighteen substantive counts for possession of unregistered and improperly identified firearms.

Badia's arrest stemmed from a federal investigation of the militant anti-Castro organization known as "Omega-7" which began in 1981. The activities of Omega-7 were directed towards the overthrow of the Castro government. Record, Vol. 13 at 96-98, Record, Vol. 19 at 101-02. During the investigation, Arocena admitted that he was the leader of the group and described its organization. Record, Vol. 12 at 82.

In September, 1981, the government obtained an order to conduct electronic surveillance of Arocena's telephone pursuant to the Foreign Intelligence Surveillance Act, 50 U.S.C. Sec. 1801 et seq. (1982) (FISA). The surveillance lasted until October, 1982. Conversations between Arocena and Badia that took place during the surveillance were recorded, and three were admitted into evidence and played at trial. Record, Vol. 17 at 70 (Dec. 16, 1981); Record, Vol. 18 at 93 (Dec. 28, 1981); Record, Vol. 20 at 8 (Jan. 5, 1982). On December 16, 1981, Arocena contacted Badia to arrange meetings between the two men. Record, Vol. 17 at 70; Government's Exh. 3048. In a subsequent conversation on December 28, 1981, Badia and Arocena discussed in code the sale of machine guns and silencers. See Record, Vol. 20 at 18, 34; Government's Exh. 3050. Badia offered to manufacture or convert the weapons that Arocena required, Record, Vol. 20 at 20-31, and acknowledged that he had already ordered the manufacture of certain firearms for Arocena. Record, Vol. 20 at 33-34. Badia also explained his pricing structure and delivery method. On January 5, 1985, Badia contacted Arocena to tell him that the firearms were ready. Subsequently, Arocena's agent picked up three cardboard boxes filled with weapons and military paraphernalia from Badia's office for delivery to Arocena. Record, Vol. 19 at 115-16.

After Arocena's arrest, agents discovered various weapons in his apartment and an address book containing Badia's name. Search of a storage space rented by Arocena yielded, among weapons and guerilla gear, a box marked "Badia" that contained gun powder fuses. Record, Vol. 15 at 24-29.

Agents arrested Badia on September 24, 1984 and advised him of his constitutional rights. When the agents told Badia about the incriminating surveillance, he bemoaned that he had told Omega-7 members not to talk to him on the telephone. Record, Vol. 18 at 181. When asked why he had used the telephone himself, Badia responded "[w]ell, I am crazy. I am expected to do things like that."

On November 8, 1984, Badia moved to sever his case from the charges pending against Arocena. The magistrate denied the motion. Badia renewed the motion before the district court, and it was again denied. However, the district court issued several cautionary instructions to the jury that stressed the separate nature of the evidence as it related to each defendant. See, e.g., Record, Vol. 12 at 87-88; Vol. 19 at 120-1.

On November 26, 1984, Badia moved to suppress the wire intercepts obtained by the government pursuant to the electronic surveillance instituted under FISA. The government requested the court to determine the legality of the surveillance. The district court conducted an in camera, ex parte review of the documents relating to the application and authorization for the wiretap, and denied the motion. The documents were not released to Badia on the basis of an affidavit submitted by the Attorney General that stated disclosure would endanger national security. Record, Vol. 2 at Tab 65 (Attachment 1).

On December 20, 1984, the government, believing that Badia might attempt to assert a defense of Central Intelligence Agency (CIA) involvement, moved to prevent Badia from examining witnesses about matters not noticed pursuant to the Classified Information Procedures Act (CIPA) 18 U.S.C. App. III (1982). Record, Vol. 2 at Tab 52. Shortly before trial began, the district court barred Badia from introducing classified information at trial for failure to comply with CIPA. Record, Vol. 10 at 45.

Trial commenced on January 29, 1985. Twice during trial, Badia moved for mistrial. Badia made his first motion after a juror expressed concern for his family's safety. The district court dismissed the juror and denied the motion. Badia moved again for mistrial after jurors heard a witness testify, in Spanish, that Badia had contracted to have him killed. The interpreter did not translate the statement, and only the four jurors who understood Spanish understood the statement. The district court struck the statement, issued a curative charge, and polled each affected juror before denying Badia's motion for mistrial. Record, Vol. 19 at 140-44.

The district court denied Badia's motions for acquittal, made at the close of the government's case and again at the close of all evidence. On February 12, 1985, the jury found both Badia and Arocena guilty of the counts charged in the indictment. The district court denied Badia's post-trial motions for judgment of acquittal and for a new trial.

We address each of Badia's contentions on appeal separately, and find that none warrant a reversal.

I. MOTION TO SUPPRESS

Badia seeks to suppress the wire intercepts on the ground that the surveillance was illegal. Badia claims that the application for the order approving the surveillance was deficient and that approval should therefore not have been granted. Specifically, Badia believes that the surveillance was imposed not to seek foreign intelligence information, but to conduct a criminal investigation. Badia requests this court to review the classified documents to determine whether the government complied with the requirements of FISA. Badia also seeks disclosure of the contents of the FISA application, asserting that continued nondisclosure of an application filed in 1981 is excessive. We disagree with Badia's contentions that the requirements of FISA were not met, and that the application should be made available to him.

Enacted in 1978, FISA permits a federal officer acting on behalf of the President, through the Attorney General, to obtain from a judge of the specially created FISA court, see 50 U.S.C. Sec. 1803, an order "approving electronic surveillance of a foreign power or an agent of a foreign power for the purpose of obtaining foreign intelligence information." Id. Sec. 1802(b). FISA contains several definitions of "foreign power" and "agent of a foreign power" pertinent to this case. "Foreign power" includes "a group engaged in international terrorism or activities in preparation therefore." Id. Sec. 1801(a)(4). "International terrorism" means "activities that

(1) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or any State;

(2) appear to be intended--

(A) to intimidate or coerce a civilian population;

(B) to influence the policy of a government by intimidation or coercion; or

(C) to affect the conduct of a government by assassination or kidnapping; and

(3) occur totally outside the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to coerce or intimidate, or the locale in which their perpetrators operate or seek asylum.

Id. Sec. 1801(c). The final definition relevant to this case involves "foreign intelligence information," which consists, in part, of

(1) information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against--

(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;

(B) sabotage or international terrorism by a foreign power or an agent of a foreign power; or

(C) clandestine intelligence activities by an intelligence service of network of a foreign power or by an agent of a foreign power;

Id. Sec. 1801(e).

The FISA judge is authorized to enter an order approving surveillance if he finds that (1) the applying federal officer has obtained the required authorization and has submitted the required information, id. Sec....