U.S. v. Carrazana
| Citation | 921 F.2d 1557 |
| Decision Date | 30 January 1991 |
| Docket Number | No. 88-5557,88-5557 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. David CARRAZANA, Pablo Carballo, Anselmo Cosio, Carlos Manuel Gonzalez, Jesus Garcia, Raul Z. Plasencia, Maria Elena Plasencia, Miguel Diaz, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
Dexter W. Lehtinen, U.S. Atty., Stephen Schlessinger, Linda Collins Hertz and Mayra R. Lichter, Asst. U.S. Attys., Miami, Fla., for the U.S.
Appeal from the United States District Court for the Southern District of Florida.
Before JOHNSON and HATCHETT, Circuit Judges, and DYER, Senior Circuit Judge.
In this multiple defendant cocaine trafficking case, we affirm the convictions.
On March 6, 1987, Eugenio Esteban was found murdered in his automobile in Miami, Florida. Esteban had worked at a gas station owned by Raul Plasencia. After starting work at the station in 1984, Esteban rapidly improved his standard of living, as evidenced by his acquisition of a $65,000 boat and a $50,000 Mercedes-Benz automobile. Initially, the Miami Metro-Dade Police Department's Homicide Division failed to develop any suspects.
On April 2, 1987, homicide investigator Andres Falcon received the first of five telephone calls from an unknown tipster. Based primarily upon these calls, which Detective Falcon and other investigators believed revealed an intimate knowledge of the Esteban homicide and of the criminal activities of Plasencia and his associates, the officers submitted a seventy-six page affidavit to a Florida district court of appeals chief judge and obtained authorization to wiretap land-line telephones located in Raul Plasencia's residence.
The tipster told Detective Falcon that he and Esteban had worked as warehousemen and occasional distributors for an extensive cocaine trafficking organization headed by Plasencia. According to the tipster, Esteban had been murdered because he had failed to compensate the organization for his loss of a hundred kilograms of cocaine with which he had been entrusted. Significantly, the tipster stated that Esteban's killer had carried a .32 caliber semi-automatic PPK handgun--a fact which the police had been careful to keep confidential. The tipster also stated that "Carlito," one of Esteban's executioners, lived at 13255 N.W. 1st Lane. Detective Falcon later learned that the address as given was inaccurate, but that an individual named Carlos Perez resided at 13253 N.W. 1st Lane. Presented with a number of photographs, an eyewitness to the Esteban murder selected the one of Carlos Perez as the one most closely resembling Esteban's murderer. The tipster also identified Pablo Carballo as a principal aide to Plasencia, a fact substantiated six weeks later when the captain of a vessel containing 2,300 pounds of cocaine was found in possession of Carballo's cellular telephone number. Additionally, the tipster stated that Plasencia felt secure within his own mansion and used its communications facilities to direct the organization's narcotics activities.
Based in part upon communications intercepted over those telephones, the detectives sought authorization to electronically tap mobile telephones used by Plasencia and his associates allegedly for conducting criminal conversations. On September 5 As a result of the investigation, the law enforcement officers concluded that Plasencia was the leader of a criminal enterprise. Maria Elena Plasencia, Raul's wife, was a trusted member in the conspiracy. Carlos Veccio and Carballo, Maria's brother, acted as lieutenants in the organization. Perez, together with Maria's brother-in-law, David Carrazana, provided security for the organization, including counter-surveillance activity. Jesus Garcia and Orlando Nunez acted as warehousemen, storing Plasencia's cocaine in their residences, and delivering it as directed by Plasencia or his lieutenants. The surveillance also unmasked customers of the organization, including Miguel Diaz, Anselmo Cosio, and a man known only as John Doe.
1987, a Florida Supreme Court Justice authorized interception of wire and oral communications occurring over Plasencia's mobile telephones. The electronic surveillance and the investigative activities it engendered revealed the operations of a large cocaine trafficking organization.
On September 7, the officers intercepted a call from Diaz to Maria Elena Plasencia requesting ten "puppies," i.e., ten kilograms of cocaine. Raul Plasencia then called Nunez to Plasencia's house. From the house, Nunez called Diaz and confirmed the order. Nunez returned home and later delivered the cocaine to Diaz's house where the two met in the driveway. Plainclothes detectives interrupted the sale, announced their identities, seized the cocaine, and then left the scene leaving Nunez and Diaz with the belief that they had been "ripped off" by rival drug dealers or dishonest law enforcement officers.
The officers hoped that continuing electronic surveillance would, in the aftermath of the seizure, provide further information concerning the Plasencia drug network. Indeed, the officers soon intercepted a number of calls between the Plasencias, Nunez, and Veccio discussing the loss of the cocaine and the need for caution. The officers also monitored conversations arranging a ten kilogram cocaine sale from Plasencia and Veccio to Doe and his partner, Cosio.
On September 8, Veccio met Cosio at Veccio's restaurant. The two then drove separately to Veccio's house and waited in the driveway. Garcia, who had confirmed the sale with Plasencia by phone, then arrived. Cosio visually inspected a box in Garcia's car, carried it to his car, and drove away. Plainclothes officers stopped Cosio's car after several miles, seized the box which contained cocaine, but again made no arrests.
On September 14, officers visited Garcia's home and sought consent to search the residence. Garcia declined to permit the search. Upon their departure, the officers saw Garcia drive his car in a frenzied manner to a rear entrance of the house and throw some heavy bags into the trunk of the car. Garcia left in haste, but officers stopped him several blocks away and discovered eighty-six kilograms of cocaine in the trunk of the car.
On October 2, 1987, a grand jury returned a five-count indictment against the appellants. The grand jury charged Raul and Maria Elena Plasencia in Count I with operating a continuing criminal enterprise, and charged the Plasencias, Veccio, Carballo, Carrazana, Diaz, Garcia, and Cosio in Count II with conspiracy to distribute cocaine, and in Counts III through V with possession of cocaine with the intent to distribute it, each possession count corresponding to each of the three seizures.
The appellants (except Cosio who is without standing) moved to suppress the fruits of the wiretaps. After conducting a lengthy evidentiary hearing, the district court denied the motion to suppress.
After seven days of trial, the Plasencias, Carballo, Carrazana, Diaz, and Garcia each entered a guilty plea to one count of possession of cocaine, preserving their right to appeal the district court's denial of their motions to suppress the wiretap evidence. A jury found Veccio guilty as charged and
Cosio guilty on the conspiracy count and on one substantive count.
The appellants contend the district court erred in denying the motion to suppress the wiretap evidence.
Cosio contends the evidence was insufficient to support his conspiracy and possession convictions and the district court erred in denying his motion for severance.
Veccio contends the district court erred in permitting the admission of "interpretive" expert testimony and erred by instructing the jury that six of the eight defendants pleaded guilty.
Raul Plasencia contends the government breached his plea agreement by asserting a position at sentencing inconsistent with the terms of the agreement.
The issues are: (1) whether the district court erred in denying the appellants' motion to suppress the wiretap evidence; (2) whether the evidence was insufficient to support Cosio's convictions for conspiracy and possession; (3) whether the district court erred in denying Cosio's motion for severance; (4) whether the district court erred in permitting the admission of expert testimony; (5) whether the district court erred in instructing the jury that certain defendants had pleaded guilty during the trial; and (6) whether the government breached its plea agreement with Raul Plasencia.
The appellants contend that the district court erred in denying their motion to suppress the introduction of the intercepted cellular phone conversations by determining that: (1) Florida's highest court had lawful authority to approve the monitoring of a mobile telephone; (2) a substantial basis for the issuance of the initial wiretap order existed; (3) alternative investigative techniques were unlikely to succeed and consequently electronic surveillance was necessary; and (4) the initial authorization of a thirty-day wiretap was sufficiently justified.
Whether a federal court order is a prerequisite to the lawful interception of communications conducted on cellular telephones is subject to plenary review. See United States v. Alexander, 835 F.2d 1406 (11th Cir.1988) ().
In 1968, Congress preempted the field of interception of wire and oral communications by enacting Title III of the Omnibus Crime Control and Safe Streets Act, Pub.L. 90-351, 82 Stat. 212 ...
To continue reading
Request your trial
-
US v. Jackson
...as a statement of a co-conspirator made in furtherance of a conspiracy under Fed. R.Evid. 801(d)(2)(E).1See United States v. Carrazana, 921 F.2d 1557, 1567 (11th Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 191, 116 L.Ed.2d 152 (1991). Consequently, the statements would be admissible in sep......
-
U.S. v. Adams
...is relevant to each defendant and render a fair and impartial verdict as to each, severance should be granted." United States v. Carrazana, 921 F.2d 1557, 1567 (11th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 191, 116 L.Ed.2d 152, and cert. denied, --- U.S. ----, 112 S.Ct. 269, 116 L.Ed.......
-
United States v. Gonzalez-Renteria
... ... where Rolex asked Siempre to send him a cell phone number ... “so he can pay us” and Siempre responded with the ... 8839 number and the password “Primo.” ... Id. at 62. Gonzalez stopped using the 8839 phone ... ...
-
United States v. Jones
...and conspirators regularly used evasive techniques to avoid other kinds of law enforcement infiltration); United States v. Carrazana, 921 F.2d 1557, 1564-65 (11th Cir.1991) (necessity existed where drug ring used counter-surveillance to frustrate investigation); United States v. Macklin, 90......