U.S. v. Baptista-Rodriguez

• Citation: 17 F.3d 1354
• Decision Date: 01 April 1994
• Docket Number: BAPTISTA-RODRIGUE,No. 91-5621,R,91-5621
• Parties: 39 Fed. R. Evid. Serv. 22 UNITED STATES of America, Plaintiff-Appellee, v. Juanamon Calvo, and Julio R. Diaz, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1354

17 F.3d 1354

39 Fed. R. Evid. Serv. 22

UNITED STATES of America, Plaintiff-Appellee, v. Juan BAPTISTA-RODRIGUEZ, Ramon Calvo, and Julio R. Diaz Defendants-Appellants.

No. 91-5621.

United States Court of Appeals Eleventh Circuit.

April 1, 1994.

Richard C. Gagliano, Miami, FL, for Baptista-Rodriguez.

Jeffrey D. Feldman, Fine, Jacobson, Schwartz, Nash & Block, Miami, FL, for Diaz.

Mel Black, Miami, FL, for Calvo.

Dexter W. Lehtinen, U.S. Atty., Lloyd King, Asst. U.S. Atty., Miami, FL, for U.S.

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

Before TJOFLAT, Chief Judge, KRAVITCH and DUBINA, Circuit Judges.

KRAVITCH, Circuit Judge:

Appellants Julio Diaz, Ramon Calvo, and Juan Baptista-Rodriguez (Baptista) were convicted of conspiracy and attempt to import and possess cocaine. For the reasons below, we affirm the convictions of Calvo and Baptista but reverse the judgment against Diaz and remand his case to the district court.

I.

The government adduced evidence that in 1987 Diaz proposed to Rene DeLamar a scheme to smuggle cocaine into the United States. Diaz joined in the enterprise Robert Treco, who had access to property in the Bahamas via which they could transship the cocaine. The plan called for the drugs to be flown from Colombia to the Bahamas, then shipped by small boat from the Bahamas to the United States.

In search of a pilot to fly the cocaine out of Colombia, Treco met Special Agent Michael McManus of the U.S. Drug Enforcement Administration (DEA) and Carlos Toro, a DEA confidential informant with connections in the Latin American drug trade. McManus was posing undercover as a drug smuggler who had a plane available to transport cocaine.

In September 1987, Treco informed Toro that Treco's principal--identified only as "Doc"--needed an immediate source of cocaine, because poor weather conditions temporarily had stalled the main importation venture. At McManus's direction, Toro responded that McManus could sell Doc 100 kilograms of cocaine. McManus agreed to deliver to Treco a one-kilogram sample.

On September 29, 1987, McManus and Treco met in a Miami hotel room. In McManus's presence Treco telephoned Doc, then informed McManus that Doc was coming over. A few minutes later, Julio Diaz, a doctor, arrived carrying a briefcase. McManus and Diaz discussed both the Bahamian smuggling venture and the 100-kilogram side deal. Diaz told McManus that he had brought the briefcase to take possession of the promised sample for his confederates to inspect. Treco and Diaz became upset when McManus replied that although he was prepared to convey the 100 kilograms, he had not brought the sample, being unwilling to release a kilogram of cocaine to individuals he hardly knew. McManus also demanded to see the full purchase price of $950,000 before he would deliver the goods. The transaction was never completed. ¹

Returning to the primary operation, in October 1987 DeLamar hosted a meeting at his Miami office. The purpose of the gathering was for "Manolo," a representative of the Colombian cartel that owned the cocaine, to meet the "boat people"--the individuals who were to transport the cocaine from the Bahamas to the United States. Present at the meeting were Diaz, Calvo, Baptista, and Jose Luis Ruiz. Diaz informed Manolo that Baptista and Calvo were the "boat people."

By early November 1987 the operation was nearing its climax. On or about November 13, Treco, Calvo, Baptista, Ruiz, and others convened at the Pilot House Hotel in Nassau, the Bahamas. The group discussed certain difficulties that had arisen relating to the impending transshipment into the United States. The next day, Diaz, Calvo, Baptista, DeLamar, and Ruiz travelled by boat to the Bahamian island of Chub Cay.

On November 15, 1987, a DEA plane flew to Colombia and was loaded with cocaine. The plane then flew to a clandestine airstrip on Chub Cay. There, members of the Bahamian Police Force, working with the DEA, arrested several people and confiscated approximately 530 kilograms of cocaine. At a nearby residence, police apprehended Calvo, Baptista, DeLamar, and Ruiz. Diaz was taken into custody the following day.

The Bahamian government charged the appellants with conspiracy to import and possess cocaine. After proceedings lasting more than a year, the presiding magistrate declared the charges a "nullity." It is unclear whether this means the appellants were acquitted or whether, in essence, a mistrial was declared. Thereafter, in June 1989, the appellants were brought to the United States to face charges in federal court.

II.

The appellants were charged together with Ruiz, DeLamar, Treco, and others in a multicount indictment. Counts I through IV alleged conspiracy and attempt to import cocaine into the United States and to possess cocaine with intent to distribute, all in connection with the Colombia-Bahamas-United States importation scheme. See 21 U.S.C. Secs. 841(a)(1), 846, 952(a) & 963. Counts V and VI applied solely to Diaz, Treco, and Treco's brother, and charged conspiracy and attempt to possess cocaine with intent to distribute, in connection with the 100-kilogram side deal discussed (although never consummated) on September 29, 1987.

Prior to trial, DeLamar agreed to plead guilty and testify on behalf of the government. Based in part on his testimony, a jury convicted Diaz, Calvo, Baptista, and Ruiz on all counts. ² Diaz, Calvo, and Baptista now challenge their convictions on several grounds. Ruiz, who had been out of jail on bond during the trial, fled prior to the return of the verdict and is not a party to this appeal. In Part III of this opinion we discuss a double jeopardy issue raised jointly by all three appellants. In Parts IV, V, and VI we address the individual claims of error asserted by Diaz, Calvo, and Baptista respectively.

III.

All three appellants contend that the district court erred when it denied their joint motion to dismiss on the grounds of double jeopardy. They claim that jeopardy attached when they were tried in the Bahamas and that the instant prosecutions violated their constitutional right not to be twice prosecuted for the same offense. See, e.g., United States v. Dixon, --- U.S. ----, ----, 113 S.Ct. 2849, 2855, 125 L.Ed.2d 556 (1993). A district court's double jeopardy ruling raises a question of law, which this court reviews de novo. United States v. Benefield, 874 F.2d 1503, 1505 (11th Cir.1989).

A.

When a defendant moves to dismiss an indictment on double jeopardy grounds, he bears the initial burden of establishing a nonfrivolous prima facie claim. E.g., United States v. Nino, 967 F.2d 1508, 1510 (11th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1432, 122 L.Ed.2d 799 (1993); United States v. Stricklin, 591 F.2d 1112, 1117-18 (5th Cir.), cert. denied, 444 U.S. 963, 100 S.Ct. 449, 62 L.Ed.2d 375 (1979). ³ Only after the defendant crosses this threshold does the burden of persuasion shift to the government to prove that no constitutional violation exists. E.g., Nino, 967 F.2d at 1510; Benefield, 874 F.2d at 1505. Although a defendant typically can make out a prima facie case by resort to the pleadings from the respective prosecutions, supplemental factfinding may be necessary. To warrant an evidentiary hearing, however, the defendant must at least allege facts that, if proved, would make out a prima facie case. "Absent a proffer of evidence demonstrating a nonfrivolous double jeopardy claim there is no obligation to hold an evidentiary hearing...." United States v. Sturman, 679 F.2d 840, 844 (11th Cir.1982), cert. denied, 459 U.S. 1171, 103 S.Ct. 816, 74 L.Ed.2d 1014 (1983); accord United States v. Garcia, 721 F.2d 721, 723 n. 2 (11th Cir.1983).

As will become evident from the next section, the appellants here could not establish a prima facie case from the pleadings in the Bahamian and American prosecutions alone. Rather, to prevail they would have had to present evidence that American authorities manipulated or interfered unduly with their prosecution by the government of the Bahamas. The district court, however, denied the appellants' motion to dismiss without conducting an evidentiary hearing. The precise question presented, therefore, is whether the allegations in the appellants' motion raise a prima facie claim under the Double Jeopardy Clause. If not, then the appellants were not entitled to an evidentiary hearing on their motion to dismiss.

B.

The Fifth Amendment provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. This guarantee protects defendants against successive prosecutions for the same criminal offense. E.g., Dixon, --- U.S. ----, 113 S.Ct. at 2855. A central issue in any double jeopardy case is whether successive prosecutions charge the "same offence."

For decades the Supreme Court has held that elementally identical offenses are nevertheless different for purposes of the Double Jeopardy Clause when they are charged by separate sovereigns. See, e.g., United States v. Wheeler, 435 U.S. 313, 317, 98 S.Ct. 1079, 1082-83, 55 L.Ed.2d 303 (1978); United States v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141, 142, 67 L.Ed. 314 (1922). This "dual sovereignty doctrine" is rooted in the common-law conception of crime as an offense against the sovereignty of a government. Heath v. Alabama, 474 U.S. 82, 88, 106 S.Ct. 433, 437, 88 L.Ed.2d 387 (1985). The rationale is simple:

When a defendant in a single act violates the peace and dignity of two sovereigns by breaking the laws of each, he has committed two distinct offenses.... [W]hen the same act transgresses the laws of two sovereigns, "it cannot be truly averred that the offender has been twice punished for the same offense."

Id. (quoting Moore v. Illinois, 55 U.S. (14 How.) 13, 19, 14 L.Ed. 306 (1852)).

The appellants concede that the Bahamas is an independent sovereign and that this fact ordinarily...