U.S. v. Caro

• Citation: 965 F.2d 1548
• Decision Date: 09 June 1992
• Docket Number: No. 91-8012,91-8012
• Parties: , 35 Fed. R. Evid. Serv. 1306 UNITED STATES of America, Plaintiff-Appellee, v. Ernie Dimitric CARO, a/k/a Louis Caro, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1548

965 F.2d 1548

132 A.L.R.Fed. 745, 35 Fed. R. Evid. Serv. 1306

UNITED STATES of America, Plaintiff-Appellee, v. Ernie Dimitric CARO, a/k/a Louis Caro, Defendant-Appellant.

No. 91-8012.

United States Court of Appeals,

Tenth Circuit.

June 9, 1992.

Patrick J. Crank, Asst. U.S. Atty. (Richard A. Stacy, U.S. Atty., with him on the brief), Cheyenne, Wyo., for plaintiff-appellee.

Richard Wolf of Wolf & Tiedeken, Cheyenne, Wyo., for defendant-appellant.

Before LOGAN and BRORBY, Circuit Judges, and OWEN, ^* District Judge.

BRORBY, Circuit Judge.

In December 1990, a jury convicted Ernie Caro on one count of conspiracy to possess with intent to distribute, and to distribute, cocaine and marijuana; and on five counts of unlawful use of a communication facility to facilitate the commission of felony violations of the federal Controlled Substances Act. Mr. Caro now appeals these convictions, asserting several bases of trial court error. We affirm Mr. Caro's conviction.

I. Background

On March 23, 1990, the federal Grand Jury for the District of Wyoming returned a six count Indictment against the Appellant (Defendant) Ernie, aka "Louis", Caro. The Indictment charged Mr. Caro with conspiracy to possess with intent to distribute, and to distribute, in excess of 500 grams of cocaine and marijuana, in violation of 21 U.S.C. § 846 (Count One); and with unlawful use of a communication facility to facilitate the commission of felony violations of the federal Controlled Substances Act, in violation of 21 U.S.C. § 843(b) (Counts Two through Six).

These charges stemmed from Mr. Caro's involvement with a Wyoming cocaine and marijuana distribution organization established and led by Francis G. (Gus) Stallings, Jr. (Stallings) from early 1987 through May 1989. Mr. Caro, who resided in Phoenix, Arizona, was identified as a primary drug supplier for the Stallings organization based on 1) the interception of conversations resulting from a state court-authorized wiretap of Stallings' telephone between April 3, 1989, and May 3, 1989; and 2) the testimony of Brenda Stallings, Lisa Buttars, Richard Eugene Christianson, and Rhonda Shankle, coconspirators who became cooperating witnesses for the United States. The specifics of Mr. Caro's involvement will be discussed as necessary in the remainder of this opinion.

Mr. Caro pleaded not guilty to each of the charges in the Indictment. Nevertheless, a jury found him guilty on each count. On March 11, 1991, Mr. Caro was sentenced to six years imprisonment on count one, and to concurrent four year terms on counts two through six. He is presently in federal custody serving his sentence in this case.

II. Contentions of Error

Mr. Caro presents eight contentions of error for consideration on appeal. We address each contention individually.

A. Miranda Violation/Voluntariness Hearing

On July 31, 1990, Special Agent Tony Young of the Wyoming Attorney General's Division of Criminal Investigation interviewed Mr. Caro in Phoenix, Arizona. At the time, Mr. Caro was being held in the Maricopa County Sheriff Department's Durango Street Jail on traffic charges. A detainer had been lodged against him with regard to the Wyoming indictment. During the interview, Mr. Caro admitted being a heavy drug user. He also admitted knowing several of the coconspirators and having had telephone conversations with Mr. Stallings. However, Mr. Caro denied participating in any substantial drug transactions with Mr. Stallings.

Mr. Caro asserts two trial errors with regard to these statements. He first contends his in-custody statements to Agent Young should have been suppressed because they were acquired in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Second, Mr. Caro contends the trial court erred by holding a voluntariness hearing in front of the jury.

Mr. Caro's first contention is completely without merit. At the suppression hearing held November 7, 1990, Mr. Caro testified that prior to the interview Agent Young advised him of his right to remain silent and to an attorney. Mr. Caro further testified that he immediately requested an attorney but that Agent Young ignored his request. Agent Young, on the other hand, testified that Mr. Caro never requested the presence of an attorney. Rather, when asked if he were willing to discuss Mr. Stallings, Mr. Caro responded, "Sure. Fire away." Agent Young characterized Mr. Caro's attitude as "very arrogant and very cocky"; and, in fact, after Agent Young had terminated the interview because he felt that Mr. Caro was lying, Mr. Caro invited him back to discuss matters further.

The trial court denied Mr. Caro's motion to suppress, specifically finding that "Agent Young's testimony [was] more credible," and that Mr. Caro had voluntarily and knowingly waived his Miranda rights. Credibility determinations are for the trial judge, as factfinder. United States v. Cooper, 733 F.2d 1360, 1364 (10th Cir.), cert. denied, 467 U.S. 1255, 104 S.Ct. 3543, 82 L.Ed.2d 847 (1984). When reviewing the denial of a motion to suppress, this court must accept the trial court's fact findings unless those findings are clearly erroneous. United States v. Corral, 899 F.2d 991, 993 (10th Cir.1990). Moreover, we view the evidence in the light most favorable to the trial court's findings. Id.

Mr. Caro has revealed nothing in the record which suggests the trial court's credibility finding was clearly erroneous. The matter simply boiled down to Mr. Caro's word against Agent Young's. The mere fact that Mr. Caro's testimony at the suppression hearing conflicted with that of Agent Young is insufficient in itself to require reversal. United States v. Falcon, 766 F.2d 1469, 1476 (10th Cir.1985).

Likewise, nothing in the record suggests the district court's finding that Mr. Caro had voluntarily and knowingly waived his Miranda rights was erroneous. Although we acknowledge the government was required to prove voluntariness by a preponderance of evidence, id., Mr. Caro has never alleged, and the record does not support, the possibility that factors such as age, mental capacity, emotional condition, or the use of alcohol or narcotics played any role in his decision to speak directly to Agent Young. The record, when reviewed in the light most favorable to the trial court's ruling, demonstrates Mr. Caro was informed of his rights, stated that he understood his rights as they had been explained, and was not subjected to any threats or promises with respect to his participation in the interview. Looking at the totality of the circumstances--both the nature of the interrogation and the characteristics of the defendant--we hold this record is sufficient to support the trial court's denial of Mr. Caro's motion to suppress. See United States v. Lux, 905 F.2d 1379, 1382 (10th Cir.1990).

Mr. Caro next asserts the trial court committed reversible error by conducting a voluntariness hearing in the jury's presence. The events giving rise to this issue occurred as follows: First, in the context of the suppression hearing discussed above, the trial court specifically found that Mr. Caro had voluntarily and knowingly waived his Miranda rights. Later, at trial, when the government began to offer Mr. Caro's statements to Agent Young, defense counsel objected. At that point, the government asked the court to make a finding of voluntariness pursuant to 18 U.S.C. § 3501(a). The court then asked defense counsel if he had "[a]ny objection to that procedure." Defense counsel responded, "I think this is an issue raised previously, Your Honor, and I would renew that." Evidently interpreting this vague objection as substantive rather than procedural, the court then commenced, in the jury's presence, to ask Agent Young whether any circumstances indicated the statement "fire away" was not voluntary; whether any force or duress was applied to Mr. Caro; and whether Mr. Caro understood he was free to leave the interview and not answer questions. Based on Agent Young's responses, the court determined Mr. Caro's statement "fire away" was a voluntary statement.

We are not convinced defense counsel adequately objected to the court's making a voluntariness determination in front of the jury; however, for the sake of argument we will assume the objection was sufficient and the trial court was in error. As early as 1943, this court warned that a trial court which determines the competency and admissibility of a confession in the presence of a jury, does so at the risk of committing reversible error. Tooisgah v. United States, 137 F.2d 713, 716 (10th Cir.1943). Today, title 18, § 3501(a) of the United States Code unmistakably mandates that "[b]efore [a] confession is received in evidence, the trial judge shall, out of the presence of the jury, determine any issue as to voluntariness." (Emphasis added); see also Jackson v. Denno, 378 U.S. 368, 395, 84 S.Ct. 1774, 1790-91, 12 L.Ed.2d 908 (1964) and Fed.R.Evid. 104(c). However, in this case we conclude the trial court's violation of § 3501(a) constituted harmless error.

Three factors completely mitigate any potential prejudice to Mr. Caro: the trial court's finding that Mr. Caro voluntarily spoke to Agent Young; the exculpatory nature of the statement at issue; and the overall strength of the government's case. As previously discussed, the record supports the trial court's finding that Mr. Caro's statement was voluntary. We agree with the Fifth Circuit's observation that "[t]he presence of the jury during the voluntariness hearing ... does not in and of itself violate due process, particularly when the confession is proven voluntary, because the confessor is not prejudiced by the jury's presence in that circumstance." Martinez v. Estelle, 612 F.2d 173, 177 (5th Cir.1980) (citing Pinto v. Pierce, 389 U.S. 31, 88 S.Ct. 192, 19 L.Ed.2d 31 (1967)); see also Tooisgah, 137 F.2d at 716. Moreover, Mr. Caro's statement to Agent Young was largely exculpatory. ...