U.S. v. Coronel-Quintana, CORONEL-QUINTANA

• Decision Date: 21 February 1985
• Docket Number: CORONEL-QUINTANA,Nos. 84-1699,84-1700,s. 84-1699
• Citation: 752 F.2d 1284
• Parties: UNITED STATES of America, Appellee, v. Santano, a/k/a Santana Coronel-Quintana, Appellant. UNITED STATES of America, Appellee, v. Inocencio CORONEL, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1284

752 F.2d 1284

UNITED STATES of America, Appellee, v. Santano CORONEL-QUINTANA, a/k/a Santana Coronel-Quintana, Appellant.

UNITED STATES of America, Appellee, v. Inocencio CORONEL, Appellant.

Nos. 84-1699, 84-1700.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 13, 1984.

Decided Jan. 16, 1985.

Rehearing and Rehearing En Banc Denied Feb. 21, 1985 in No.84-1699.

Ruth Kronlokken, St. Paul, Minn., for appellant Quintana.

Keven B. Spaeth, Grand Forks, N.D., for appellant Coronel.

Gary Annear, Asst. U.S. Atty., Fargo, N.D., for appellee.

Before HEANEY, ROSS and FAGG, Circuit Judges.

HEANEY, Circuit Judge.

Santana Coronel-Quintana was convicted of knowingly, intentionally, and unlawfully distributing heroin in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2, conspiring to distribute heroin in violation of 21 U.S.C. Sec. 846, and unlawfully carrying a firearm during the commission of a felony in violation of 18 U.S.C. Sec. 924(c)(2). He received a total sentence of fifteen years plus three years special parole. ¹ Inocencio Coronel was convicted of the same offenses as Santana, as well as attempting to distribute cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and 846, receiving a firearm transported through interstate commerce in violation of 18 U.S.C. Sec. 922(h), and illegal reentry into the United States after deportation in violation of 8 U.S.C. Sec. 1326. He received a total sentence of twenty-seven years plus ten years special parole. ² Both defendants raise numerous claims for reversal which we discuss in seriatim.

I. BACKGROUND.

This appeal arises from the defendants' participation in an illegal drug transaction in North Dakota. A confidential informant met with two drug enforcement agents and offered to supply them with information concerning drug trafficking in the Grafton, North Dakota, area. The informant named three brothers, Inocencio Coronel, Jesus Coronel-Quintana, and Santana Coronel-Quintana as potential contacts, and Carmen Rodriguez as the "middleman." The agents opened a file on these men and arranged a "sting" operation. The informant introduced the agents to Rodriguez, who told them that he could supply them with heroin and cocaine purchased in California, and that he knew two men in the Grafton area who could also supply them with these drugs. (Tr. 18) Through a series of telephonic negotiations, which were recorded by the government agents, the initial purchase was scheduled for November 30, 1983. Jesus's supplier told him that the deal looked too suspicious and backed out of the deal. (Tr. 701) The agents remained in contact with Rodriguez, however, and a purchase was scheduled for December 22, 1983. This transaction resulted in the arrests of Santana, Inocencio, Jesus, Rodriguez, and Andres Diaz-Quintana. ³

II. DISCUSSION.

A. Denial of Continuance.

Santana and Inocencio contend that the district court erred in denying their motion for a continuance when it was discovered that the preliminary hearing recording was not transcribable. They argue that, because the district court denied their motion for a continuance so they might transcribe the tape, they were deprived of their right to effectively cross-examine and impeach one of the government's undercover agents. Apparently, the agent testified at the preliminary hearing that he was unsure of the heroin source but later testified at trial that Santana was the source of the heroin. (Tr. 157)

Because a trial judge must balance a number of considerations in determining whether or not to grant a continuance, he must be afforded substantial discretion, United States v. Little, 567 F.2d 346, 348-49 (8th Cir.1977), cert. denied, 435 U.S. 969, 98 S.Ct. 1608, 56 L.Ed.2d 60 (1978), and denial of a continuance will constitute reversible error only if the judge clearly abuses this discretion. United States v. Reed, 658 F.2d 624, 627 (8th Cir.1981), cert. denied, 455 U.S. 1002, 102 S.Ct. 1636, 71 L.Ed.2d 870 (1982); United States v. Wolf, 645 F.2d 665, 667 (8th Cir.1981). In Little, this Court noted the following five factors that the trial judge must consider in determining whether to grant a continuance:

1) the nature of the case and whether the parties have been allowed adequate time for trial preparation; 2) the diligence of the party requesting the continuance;

3) the conduct of the opposing party and whether a lack of cooperation has contributed to the need for a continuance;

4) the effect of the continuance and whether a delay will seriously disadvantage either party;

5) the asserted need for the continuance, with weight to be given sudden exigencies and unforeseen circumstances.

United States v. Bernhardt, 642 F.2d 251, 252 (8th Cir.1981) (citing Little, 567 F.2d at 348-49).

The defendants were given copies of the tapes prior to trial, and had an opportunity to listen to them and obtain whatever information they could from them. A continuance would not have solved the problem of the discrepant testimony because the tapes were simply unintelligible. Moreover, the defendants' counsel were at the preliminary hearing, and therefore were fully aware of the discrepancies in the agent's testimony. They could have brought out this discrepancy during cross-examination under Rule 613 of the Federal Rules of Evidence without the preliminary hearing transcript, yet they failed to do so. Thus, reviewing the record in light of the factors listed in Little, we conclude that the district court did not abuse its discretion in denying the defendants' motion for a continuance.

B. Production of the Confidential Informant.

In their pretrial motions, the defendants moved for disclosure of the identity of the government's confidential informant, Carlos Perez. Relying on the prosecution's statement that Perez was a "mere tipster," the district court denied their motion. The defendants argue that the district court erred in denying their motion and, as a result, they were denied an opportunity to develop an entrapment defense. They also contend that Perez had evidence that would have substantially impeached the credibility of the prosecution's witnesses. Although it is apparent from the record that Perez actively participated in the transaction and therefore was more than a "mere tipster," we find that there was no denial of due process under these circumstances.

In United States v. Barnes, 486 F.2d 776, 778-79 (8th Cir.1973), we noted that where the informant was "an active participant or witness to the offense charged, disclosure will almost always be material to the accused's defense." Id. at 779. See also United States v. Bruneau, 594 F.2d 1190, 1197 (8th Cir.), cert. denied, 444 U.S. 847, 100 S.Ct. 94, 62 L.Ed.2d 61 (1979). However, even if we conclude that the government should have disclosed the confidential informant's identity prior to trial, the defendants suffered no material prejudice from the government's failure to do so. It is clear from the record that the defendants knew the informant's name and where he was residing before trial. Moreover, the defendants knew that Perez was present throughout the negotiations and during the transaction, and could have subpoenaed him if they believed he had evidence that would have exonerated them. Yet they did not do so. ⁴ Therefore, we conclude that they suffered no prejudice from the denial of their motion to disclose. See, e.g., Bruneau, 594 F.2d at 1197-98; United States v. DeAngelis, 490 F.2d 1004, 1010 (2d Cir.), cert. denied, 416 U.S. 956, 94 S.Ct. 1970, 40 L.Ed.2d 306 (1974).

C. Severance.

Santana and Inocencio argue that the district court abused its discretion in denying their motions for severance. However, neither defendant renewed his motion for severance at the close of the government's case nor at the conclusion of all the evidence, and therefore they waived their request for a separate trial. United States v. Reed, 658 F.2d at 629; United States v. Brim, 630 F.2d 1307, 1310 (8th Cir.1980), cert. denied, 452 U.S. 966, 101 S.Ct. 3121, 69 L.Ed.2d 980 (1981). In any event, denial of their motions for severance was not error. "The general rule is that persons charged in a conspiracy should be tried together, particularly where proof of the charges against the defendants is based upon the same evidence and acts." United States v. Lee, 743 F.2d 1240, 1248 (8th Cir.1984). See also United States v. Krevsky, 741 F.2d 1090, 1094 (8th Cir.1984); United States v. Miller, 725 F.2d 462, 467 (8th Cir.1984). "A defendant must show more than that his chances for acquittal would have been greater had he been tried separately." Lee, 743 F.2d at 1248. Rather, the defendant must show that he was prejudiced by the denial for severance, and this prejudice must be "clear" and "real." Miller, 725 F.2d at 467.

The defendants argue that, because they were not charged in all counts of the indictment and because the amount of evidence concerning each defendant's participation in the transaction was disproportionate, the jury was unable to separate the evidence and consider each defendant individually. This argument is without merit. The fact that Andres Diaz-Quintana, who was tried with Santana and Inocencio, was acquitted of all charges against him attests to the jury's diligence in considering each defendant's case individually.

Santana also argues that he was prejudiced by the denial for severance because Inocencio would have testified on Santana's behalf had they been tried separately. Inocencio chose not to testify at trial because information that would have been highly prejudicial to him would have been admitted into evidence. ⁵ However, we cannot say that Santana suffered any clear and real prejudice. Santana does not indicate what Inocencio could have testified and how that testimony would have exonerated him. Moreover, both Jesus Quintana and Carmen Rodriguez testified that Santana was not a part of the conspiracy, yet the jury apparently chose not to believe...