U.S. v. Castro

• Decision Date: 17 July 1990
• Docket Number: 89-1530,89-1893 and 89-1894,Nos. 89-1528,89-1531,s. 89-1528
• Citation: 908 F.2d 85
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alberto CASTRO (89-1528), Ignacio Forte (89-1530), Guillermo Rocha (89-1531), Jaime Giraldo (89-1893), Norberto Giraldo (89-1894), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 85

908 F.2d 85

UNITED STATES of America, Plaintiff-Appellee, v. Alberto CASTRO (89-1528), Ignacio Forte (89-1530), Guillermo

Rocha (89-1531), Jaime Giraldo (89-1893), Norberto

Giraldo (89-1894), Defendants-Appellants.

Nos. 89-1528, 89-1530, 89-1531, 89-1893 and 89-1894.

United States Court of Appeals, Sixth Circuit.

Argued and Submitted May 1, 1990.

Decided July 17, 1990.

Mark Andrew Miller, Asst. U.S. Atty., Stanley J. Janice, Asst. U.S. Atty. (argued), Detroit, Mich., for U.S.

Jon A. May, May & Cohen, Miami, Fla., for Alberto Castro.

Edward Wishnow (argued), Southfield, Mich., for Ignacio Forte.

Christopher A. Andreoff (argued), Evans & Luptak, Detroit, Mich., for Guillermo Rocha.

Michael J. O'Kane (argued), Ft. Lauderdale, Fla., for Jaime Giraldo.

Michael J. O'Kane (argued), Ft. Lauderdale, Fla., for Norberto Giraldo.

Before GUY and NELSON, Circuit Judges; and EDWARDS, Senior Circuit Judge.

GEORGE CLIFTON EDWARDS, Jr., Senior Circuit Judge.

After a trial lasting from January 25, 1989, to February 8, 1989, a jury found Alberto Castro, Guillermo Rocha, and Ignacio Forte guilty of participating in a conspiracy to distribute cocaine and of possession with intent to distribute cocaine. A jury also found Guillermo Rocha guilty of interstate travel in aid of racketeering. Jaime and Norberto Giraldo entered pleas of guilty to conspiracy to distribute cocaine, conspiracy to launder monetary instruments, and conspiracy to engage in monetary transactions derived from controlled substances distribution.

Defendants Castro, Forte, and Rocha claim that the district court erred by allowing evidence of money laundering transactions for which no charges had been brought against them. Rocha claims in addition that (1) the trial court abused its discretion by not declaring a mistrial to allow him to substitute counsel; (2) he received ineffective assistance of counsel; (3) his indictment resulted from government misconduct before the grand jury; (4) the government attorney's improper comments during the opening statement and closing argument deprived him of his constitutional right to a fair trial; and (5) the court erred by failing to make the required finding as to the existence of a conspiracy and the admissibility of co-conspirator statements. Rocha and Castro both argue that the district court improperly gave them four-level increases under the sentencing guidelines for being leaders or organizers of the conspiracy. The Giraldos assert that the district court should have granted them two-point reductions for acceptance of responsibility.

This case was tried before Judge Horace Gilmore and a jury. The record of the trial clearly indicates that, although this case must be remanded to the district court in order for the district court to make the required finding regarding the admissibility of co-conspirator statements, the judgment of the district court should be affirmed in all other respects.

I.

In this case, undercover U.S. Customs agents posed as money launderers in order to infiltrate a large-scale cocaine trafficking organization. From October 1987 to March 18, 1988, defendants Jaime and Norberto Giraldo and others delivered suitcases full of large amounts of cash--totalling over $8,000,000.00--to undercover agents for laundering. The undercover agents worked with unscrupulous bank officials in order to transfer the money to accounts of so-called "drug lords" in Colombia. The cash flow purportedly slowed in March of 1988 because of the assassination of the Attorney General in Colombia and the shooting of one of the main Colombian drug traffickers.

In June of 1988, defendant Castro agreed to pay a co-conspirator, Eduardo Jiminez, to drive a 99 kilogram load of cocaine secreted in five "Dole" banana boxes from the New York area to Detroit. Jiminez asked defendant Forte to ride with him to Detroit. During the trip, Jiminez informed Forte that they were hauling cocaine. Forte was initially angry when he learned what the truck contained, but upon arrival to Detroit he assisted Jiminez with unloading the cocaine and transferring it to another vehicle. The defendants were arrested shortly thereafter.

Evidence at trial indicated that from November 1987 to June 1988, defendant Castro employed individuals to transport large amounts of cocaine from Florida and elsewhere to Detroit and other cities in his semi tractor-trailer. Defendant Guillermo Rocha employed persons to transport cocaine from Florida to Detroit in cars equipped with secret compartments and to transport cash proceeds from the sale of cocaine from Detroit to Florida. During the course of the conspiracy, Rocha allegedly directed an estimated 150-250 kilograms of cocaine to the Detroit area. He enlisted a co-conspirator to travel to New York to obtain cocaine, and he facilitated the transfer of that cocaine upon its arrival to Detroit.

II.

During the jury trial, the government introduced testimony of a U.S. Customs agent regarding the laundering of the proceeds from the distribution and sale of cocaine. Although none of the defendants on trial were charged with money laundering, the government sought to link Castro Forte, and Rocha to approximately half a ton of cocaine through these money laundering activities. The jury found the defendants guilty of conspiracy to distribute cocaine, but found that the government had proved only 119 kilograms were involved in the case of Rocha and 99 kilograms in the cases of Forte and Castro.

Financial aspects of drug trafficking represent an integral part of a conspiracy to distribute controlled substances. In fact, "[i]mporters, wholesalers, purchasers of cutting materials, and persons who 'wash' money are all as necessary to the success of the venture as the retailer." United States v. Barnes, 604 F.2d 121, 154-55 (2nd Cir.1979), cert. denied, 446 U.S. 907, 100 S.Ct. 1833, 64 L.Ed.2d 260 (1980); see also United States v. Tedder, 801 F.2d 1437, 1447 (4th Cir.1986), cert. denied, 480 U.S. 938, 107 S.Ct. 1585, 94 L.Ed.2d 775 (1987) ("Money laundering and drug trafficking are often intimately connected."). For this reason, evidence of the currency collections connected with the drug trafficking at issue did not constitute a variance from the charged conspiracy in view of additional evidence indicating defendants' knowledge and intent. See United States v. Tedder, 801 F.2d at 1447.

Moreover, the prejudicial effect of this evidence did not outweigh its probative value under Rule 403 of the Federal Rules of Evidence. ^* This Circuit has stated that the decision as to whether evidence is admissible under Rule 403 is left to the sound discretion of the trial court, and has emphasized that the value of the evidence must be substantially outweighed by its prejudicial character in order to justify its exclusion under Rule 403. United States v. Brady, 595 F.2d 359, 361 (6th Cir.1979), cert. denied, 444 U.S. 862, 100 S.Ct. 129, 62 L.Ed.2d 84 (1979). An appellate court must review this exercise of discretion "in the light most favorable to its proponent, maximizing its probative value and minimizing its prejudicial effect." United States v. Zipkin, 729 F.2d 384, 389 (6th Cir.1984). Evidence of money laundering was highly probative of the defendants' involvement in a large conspiracy involving numerous participants and the distribution and sale of an estimated half ton of cocaine. Although the jury did not find the evidence of a link to this quantity of cocaine convincing, nevertheless the judge did not abuse his discretion in allowing testimony concerning the extent of the unlawful activity.

III.

The district court properly denied the defendant's motion to substitute counsel. Defendant Rocha claims that he hired a particular attorney, Harold Fried, to represent him at trial, but that Mr. Fried sent an associate at his firm, Steven Sonnenberg, to try the case. Steven Sonnenberg, the associate, represented the accused at all pre-trial proceedings and signed all pretrial motions. The defendant never voiced an objection or concern about Mr. Sonnenberg's representation before trial or during the first three days of trial. On the fourth day of about a two-week trial, another attorney, Christopher Andreoff appeared in court and stated that the defendant wished to be represented by different counsel. Mr. Andreoff indicated that the defendant had not worked out a retainer arrangement with him. On the sixth day of trial, Mr. Andreoff indicated that, although defendant Rocha had agreed to retain him, he was not prepared to proceed because he lacked sufficient familiarity with the case. The court denied the motion for mistrial.

A defendant has no right to substitute counsel for the purpose of delaying or manipulating his trial. Meyer v. Sargent, 854 F.2d 1110, 1113 (8th Cir.1988); United States v. White, 529 F.2d 1390, 1393 (8th Cir.1976). An accused may substitute his counsel during trial only for good cause shown such as a conflict of interest, a complete breakdown in communications, or an irreconcilable conflict with his attorney. Wilson v. Mintzes, 761 F.2d 275, 280 (6th Cir.1985). No compelling circumstance justifying substitution of counsel during trial existed in this case. Therefore, the district court properly denied the motion for mistrial.

Furthermore, although it strongly appears that defendant Rocha was not denied effective assistance of counsel, this court declines to consider the claim of ineffective assistance of counsel for the first time on appeal. United States v. Swidan, 888 F.2d 1076, 1081 (6th Cir.1989). The defendant may properly raise this issue in a motion to the district court pursuant to 28 U.S.C. Sec. 2255. United States v. Hill, 688 F.2d 18, 21-22 (6th Cir.1982), cert. denied, 459 U.S. 1074, 103 S.Ct. 498, 74 L.Ed.2d 638 (1982).

IV.

Defendant Rocha makes no showing that the government acted improperly in submitting this matter to the grand jury. The basis for defendant Rocha's allegation...