U.S. v. Baro

• Decision Date: 02 February 1994
• Docket Number: 92-1502 and 93-1250,Nos. 92-1501,s. 92-1501
• Parties: P UNITED STATES of America, Plaintiff-Appellee, v. Danilo BARO (92-1501; 93-1250) and Ramon Baro (92-1502; 93-1250), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 563

15 F.3d 563

1994 Fed.App. 29P

UNITED STATES of America, Plaintiff-Appellee, v. Danilo BARO (92-1501; 93-1250) and Ramon Baro (92-1502;

93-1250), Defendants-Appellants.

Nos. 92-1501, 92-1502 and 93-1250.

United States Court of Appeals,

Sixth Circuit.

Argued Oct. 4, 1993.

Decided Feb. 2, 1994.

Rehearing Denied in Nos. 92-1502, 93-1250, March 21, 1994.

Barbara Colby Tanase (argued and briefed), Office of the U.S. Atty., Detroit, MI, for the U.S., plaintiff-appellee.

Joaquin Perez (argued and briefed), Charles White Assoc., Miami, FL, for Danilo Baro, defendant-appellant.

Charles G. White (argued and briefed), Charles White Assoc., Miami, FL, for Ramon V. Baro, defendant-appellant.

Before: MARTIN and BOGGS, Circuit Judges; and HULL, District Judge. ^*

BOYCE F. MARTIN, Jr., Circuit Judge.

Danilo Baro and Ramon Baro were convicted by a jury of unlawful distribution of cocaine, in violation of 21 U.S.C. Sec. 841(a)(1), and conspiracy to possess cocaine with the intent to distribute, in violation of 21 U.S.C. Secs. 841(a)(1), 846. Danilo Baro was also convicted of engaging in a continuing criminal enterprise, in violation of 21 U.S.C. Sec. 848. They now appeal, on numerous grounds, their convictions and the sentences imposed by the district court. For the following reasons, we uphold Danilo Baro's and Ramon Baro's convictions, but vacate their sentences. We remand so that the district court may make further findings regarding the proper quantity of cocaine to be attributed to each defendant.

I

Danilo Baro, Ramon Baro, and five other defendants were charged with conspiracy to possess with intent to distribute cocaine and distribution of cocaine. The indictment alleged that Danilo Baro, with the assistance of his brother, Ramon, ran a cocaine distribution operation out of Miami, Florida. Over an approximately two-year period beginning in June 1988, the Baros sold a substantial quantity of cocaine to various Detroit-based associates, including Rolando Arango, Victor Suarez, and Alberto Dupont.

On occasion, Ramon Baro served as a courier for his brother, transporting cocaine to Detroit and subsequently returning to Miami with the cash proceeds from the sale. On August 26, 1988, drug interdiction task force agents observed Ramon Baro and a companion enter the Northwest Airlines terminal at Detroit Metropolitan Airport. Minutes later, Baro approached Charles Moffitt, unaware that Moffitt was an undercover special agent with the Drug Enforcement Agency. Baro indicated that he was traveling to Miami with a companion, and asked where he could purchase a one-way ticket with cash. After offering direction, Moffitt watched Baro purchase a ticket at the appropriate counter, separate from his companion, and walk toward the departure gate.

After Baro passed through the security gate into concourse E, Moffitt overtook Baro, introduced himself as a police officer, and asked to speak with Baro. Baro agreed. At this point, approximately ten minutes remained before Baro's flight to Miami departed.

Asking for Baro's ticket and identification, Moffitt first confirmed that the name on the ticket matched that on the driver's license. Moffitt then asked for permission to search Baro's person and carry-on bag. After securing Baro's consent, Moffitt found and removed two bundles of currency from the bag and a third bundle of currency from Baro's waistband. Baro claimed that he was carrying the money, which he stated was derived from the remortgage of his house, because he had intended to purchase an automobile in Detroit.

Holding the three bundles in his hand, Moffitt informed Baro that he was taking the money to the DEA's airport office to subject it to a canine sniff. Moffitt then presented Baro with two options: catch the flight to Miami and wait for a receipt for the money to arrive in the mail or accompany the agent to the DEA office. Although informed that he was not under arrest, with less than five minutes remaining in which to catch his flight, Baro chose to stay with his property.

At the DEA office, the dog reacted positively for drugs. In response to further questioning regarding the source of the funds, Baro again told Moffitt that he obtained the money from the remortgage of his home and added that a portion of the cash was derived from the recent sale of Casino Dry Cleaners, a business that Baro had owned in Miami. The agent's call to directory assistance in Miami revealed no listing for the business. After being photographed, Baro was allowed to leave the DEA office with his bag. Moffitt retained the currency, which totaled $14,190.00.

Ramon Baro's August 1988 contact with the DEA agents at Detroit Metropolitan Airport ended his stint as a courier for his brother. The Baro cocaine distribution operation, however, continued unabated for more than a year. To establish the total amount of cocaine distributed by the Baros during the conspiracy, the government relied upon testimony from three sources: Rolando Arango, Elaine Dunkcan, and Alberto Dupont.

First, Arango testified at trial that he received a total of about forty-two kilograms of cocaine from the Baros on ten separate occasions. In particular, Arango testified that he arranged through Danilo Baro to obtain one kilogram of cocaine in July 1988. Later that summer, Ramon Baro twice delivered two kilograms of cocaine to Arango in Detroit. During the remainder of 1988, Arango received from Danilo Baro, via unidentified couriers, four shipments totaling about twenty-eight kilograms of cocaine. Finally, in early 1989, Arango traveled to Miami with Suarez on three occasions, purchasing a total of seven kilograms of cocaine from Danilo Baro and receiving two additional kilograms of cocaine to hold for Ramon Baro.

Elaine Dunkcan, Suarez's girlfriend during 1988 and 1989, testified at trial that she was aware that Suarez received between two and five kilograms of cocaine from the Baros. First, Dunkcan accompanied Suarez and Dupont to Miami in 1989 and observed the men receive two or three kilograms of cocaine from the Baros. Dunkcan also recounted that soon after she and Suarez returned to Detroit from a trip to Miami in January, 1990, they were arrested as they attempted to deliver the second of two kilograms of cocaine to a confidential informant. Dunkcan was unable to confirm, however, that either Danilo or Ramon Baro was the source of these two kilograms.

Finally, the government credits the Baros as the source of two kilograms of cocaine recovered by the police from a car parked at Dupont's house. The car was registered to Ramon Baro. According to police testimony at trial, Dupont stated after his arrest that he had transported the cocaine to Detroit for Suarez.

Following a three-week trial, the jury found both Danilo and Ramon Baro guilty of conspiring to distribute cocaine as well as distribution of cocaine. Danilo Baro was also convicted of engaging in a continuing criminal enterprise. At sentencing, the government argued, and the district court agreed, that the conspiracy involved at least fifty kilograms of cocaine--forty-two kilograms obtained by Arango, five kilograms identified by Dunkcan, two kilograms recovered from Dupont, and at least one additional kilogram based on evidence that Suarez and Dupont made regular trips to Miami during this period. Over the objection of both defendants, the court included in its calculations under the Sentencing Guidelines a total of at least fifty kilograms of cocaine and assigned both defendants a base offense level of thirty-six. The court also found that both defendants played managerial or supervisory roles and thus added two additional levels to Ramon Baro's base offense level and four additional levels to Danilo Baro's base offense level. Danilo Baro was sentenced to a term of incarceration of 320 months, to be followed by a five-year term of supervised release, and a fine of $5,000. Ramon Baro was sentenced to 260 months of incarceration, a five-year term of supervised release, and a fine of $5,000. This timely appeal followed.

Challenging both their convictions and their sentences, Danilo and Ramon Baro raise numerous grounds for relief. Ramon Baro asserts that he has standing to join Dupont's motion to suppress evidence seized from Dupont's car on January 25, 1990. In addition, both defendants claim that the district court abused its discretion in selecting the method of exercising peremptory challenges. The Baros also claim that they were denied due process of law and their right to confront Arango. Finally, Ramon Baro argues that he was a minor participant in the conspiracy and the district court thus erred by including a two-level increase pursuant to U.S.S.G. Sec. 3B1.1(c) in the calculation of his sentence. Having considered these issues and finding them without merit, we turn to the two claims that do warrant consideration: the district court's denial of Ramon Baro's motion to suppress evidence obtained during the August 1988 airport encounter, and the district court's calculation of the base offense level for Ramon and Danilo Baro.

II

Raising two separate grounds, Ramon Baro contests the district court's denial of his motion to suppress evidence and statements obtained during the August 1988 encounter with Agent Moffitt at the Detroit Metropolitan Airport. While this Court reviews the district court's factual findings on suppression issues for clear error, we analyze the district court's conclusions of law under a de novo standard. United States v. Williams, 962 F.2d 1218, 1221 (6th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 264, 121 L.Ed.2d 194 (1992).

Ramon Baro first claims that the district court erred in finding that he consented to the search of his carry-on bag and person. As the numerous airport search cases recently before this Court make clear, the Fourth Amendment is not violated when a police officer approaches a member of the traveling public, identifies himself as a...