U.S. v. Correa-Arroyave

• Citation: 721 F.2d 792
• Decision Date: 23 December 1983
• Docket Number: No. 82-5737,CORREA-ARROYAV,D,82-5737
• Parties: 14 Fed. R. Evid. Serv. 1414 UNITED STATES of America, Plaintiff-Appellee, v. Cesar Augustoefendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 792

721 F.2d 792

14 Fed. R. Evid. Serv. 1414

UNITED STATES of America, Plaintiff-Appellee, v. Cesar Augusto CORREA-ARROYAVE, Defendant-Appellant.

No. 82-5737.

United States Court of Appeals Eleventh Circuit.

Dec. 23, 1983.

Douglas L. Williams, Martin Nathan, Miami, Fla., for defendant-appellant.

Stanley Marcus, U.S. Atty., Neil Taylor, Robert Dunlap, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before FAY and HATCHETT, Circuit Judges, and ATKINS ^*, District Judge.

ATKINS, District Judge:

Cesar Augusto Correa-Arroyave (Correa) was convicted of three counts charging (a) conspiracy to possess and distribute, (b) unlawful possession, and (c) distribution of cocaine. Counts II and III also charged violations of 18 U.S.C. Sec. 2. Correa raises issues dealing with out-of-court statements of a co-conspirator, prosecutorial misconduct during opening statement and closing argument and the sufficiency of the evidence. Finding no error in the trial proceedings and that the evidence supports the convictions, we affirm.

I The Facts

A series of meetings and telephone conversations beginning on February 5th were held among Special Agents Paul Sennette and Barry Carew, posing as narcotics dealers, and a cooperating individual, Bertram Mark Schwartz. After an abortive plan to sell nine kilograms of cocaine at a price of $57,000 per kilogram at Westland Mall on February 10 (T 53), the transaction was rescheduled for February 11. (T 60)

On February 11, at 10:30 in the morning, Sennette and Special Agent Carol Cooper returned to the Westland Mall in a Mercedes-Benz automobile. (T 61, 146) Carew followed, driving a yellow Cadillac Eldorado. (T 61, 143, 146) Sennette and Cooper had with them a half million dollars in cash. (T 61)

After parking the Mercedes near the entrance to Burdines, Sennette left the Mercedes and walked over to a Bronco vehicle parked five to ten feet away. (T 62, 67) Inside the Bronco was John Palmer and another individual in the passenger seat. Sennette had met Palmer the day before through Schwartz. (T 57) Palmer introduced Sennette to an individual, identified as Francisco Restrepo. (T 62)

Palmer requested to see the money, and was taken to the Mercedes where Cooper showed him the half million dollars. (T 63, 66-67) Palmer got out of the Mercedes and told Restrepo to get the cocaine. (T 67). Carew, who was at this point walking with Schwartz towards the Mercedes, threw Restrepo the keys to the yellow Cadillac. Restrepo got into the Cadillac and drove out of the parking area. (T 67-68)

Carew followed Schwartz into the shopping mall. He was introduced to two Latin individuals, who later became known to him as Juan Rosano Crump-Perez and Julio Cesar Zuniga. (T 148) Carew engaged Zuniga in a conversation in Spanish and spoke to Crump about the prospects of future cocaine transactions. (T 150-51).

At approximately 11:00 a.m. Restrepo returned to the parking area, walked over to the Mercedes and asked Sennette to go to the apartment with him. (T 69) Sennette told Restrepo to get the cocaine. (T 69) Restrepo asked Palmer if he had seen the money. Palmer replied that he had and directed Restrepo to get the cocaine. (T 69) Restrepo got back into the Cadillac and drove out of the parking area. (T 69)

At approximately 12:00 noon the Cadillac, driven by Restrepo, entered the parking lot at the far west end of the Westland Mall. (T 71) Shortly thereafter Restrepo walked over to the Mercedes and asked to see the half million dollars. (T 71) Restrepo got into the Mercedes and was shown the money. (T 71) At that point, Restrepo stated that the cocaine was here and that Carew should go get it. (T 72) Palmer gave Carew the car keys and drove him to the Cadillac which was parked approximately one hundred yards from the Mercedes and the Bronco. (T 155-56)

When the car which Palmer was driving arrived near the Cadillac, Carew got out of Palmer's car and "walked directly to the Cadillac." (T 156) As he approached the car he saw Correa "leaning up against the driver's door of the Cadillac." (T 156) Carew asked Correa if the cocaine was "... in the front or in the trunk." The appellant replied "... it's in the trunk." (T 156)

Carew, accompanied by Correa, then walked to the rear of the Cadillac and opened the trunk. (T 157) Correa looked around for a minute or two. Carew told Correa that it made no difference to him whether he stayed or left. Correa asked about the whereabouts of Restrepo and was told by Carew that Restrepo was near the entrance to the mall. At this point, Correa turned and started walking slowly towards the direction of Sennette's and Palmer's cars. (T 157-58)

Carew stayed behind at the trunk of the Cadillac where he field-tested the cocaine. (T 158) He then drove the Cadillac up towards the mall. Along the way, he passed Correa and offered to give him a ride to the front of the mall. Correa refused. (T 158).

Correa, Palmer, Schwartz, Restrepo, Crump and Zuniga were arrested shortly thereafter at the Westland Mall by the Special Agents of the Drug Enforcement Administration. (T 73-74) The cocaine seized from the trunk of the Cadillac totaled approximately twenty pounds and was ninety-one percent pure. (T 201, 204)

II Admission of Co-Conspirators' Statements

Federal Rule of Evidence 801(d)(2)(E) provides that a statement is not excludable as hearsay if offered against a party and made "by a co-conspirator of a party during the course and in furtherance of the conspiracy." Before admitting such statements, however, an initial determination must be made by the trial judge that there is "substantial independent evidence of a conspiracy ...." United States v. James, 590 F.2d 575, 581 (5th Cir.1979) (en banc), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1972).

Correa claims that the district court improperly admitted co-conspirator statements without satisfying the standards required for the admission of this kind of evidence. The record shows that the court announced acceptance of a "proffer" (T 40) and at the conclusion of the government's case made a finding that the requirements of United States v. James, 590 F.2d 575 (5th Cir.) (en banc), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1972) had been satisfied. (T 287) A pretrial James hearing is not mandated. United States v. Miller, 664 F.2d 826 (11th Cir.1981). See also United States v. Ocanas, 628 F.2d 353, 359-60 (5th Cir.1980), cert. denied, 451 U.S. 984, 101 S.Ct. 2316, 68 L.Ed.2d 840 (1981); United States v. Grassi, 616 F.2d 1295, 1300 (5th Cir.1980), cert. denied, 449 U.S. 956, 101 S.Ct. 363, 66 L.Ed.2d 220 (1980).

The facts recounted above remove any serious dispute that a conspiracy existed. The trial court found and the record supports that there was substantial independent evidence that Correa was a member of that conspiracy. To reiterate, under the plan conceived by Sennette and Schwartz, the cocaine was to be delivered to the Westland Mall in the yellow Cadillac. As Carew approached the yellow Cadillac, he observed the appellant leaning up against the driver's door of the Cadillac. Carew asked the appellant whether the cocaine was "... in the front or in the trunk." To which the appellant replied that "... it's in the trunk." (T 156) Correa briefly accompanied Carew to the rear of the Cadillac and then asked about the whereabouts of Restrepo. After being told that Restrepo was near the entrance to the Mall, Correa walked in that direction. (T 157-58)

Correa urges that since he was standing near the car and there was no cocaine visible in the passenger compartment as none was "in there", the comment that the cocaine was "in the trunk" was not particularly suggestive of anything. (Appellant's Brief at 30) We disagree. The statement was a direct response to Carew's question and it furthered the goal of the conspiracy, i.e., the distribution of cocaine. As such, it was clearly admissible under Fed.R.Evid. 801(d)(2)(A). United States v. Roe, 670 F.2d 956 (11th Cir.1982).

The situation obtained herein is not unlike that of the defendant Velazquez in United States v. Mesa, 660 F.2d 1070 (5th Cir.1981). The only evidence against Velazquez consisted of his arrest inside a camper which was being loaded with bales of marijuana during the course of a late night off-loading operation. The Court in Mesa held that "[p]roof of such a compromising position makes any hypothesis of innocence unreasonable ...." 660 F.2d at 1074. The Mesa Court found that the district court was correct in admitting co-conspirators' statements against Velazquez. Id.

Correa was the only co-conspirator at the location of the cocaine prior to its distribution to the undercover agents. He alone informed Carew as to the precise location of the cocaine. Correa then sought to rejoin his co-conspirators, who, according to plan, were in the process of receiving the half million dollars in exchange for the cocaine. This evidence makes any hypothesis of Correa's innocence unreasonable. See Id.

The District Court's assessment of the James issue is a finding of fact which will be overturned only if it is clearly erroneous. United States v. Roper, 681 F.2d 1354, 1359-60 (11th Cir.1982). The finding by the Court that there was substantial independent evidence of a conspiracy is clearly supported by the record. We therefore find that Correa's contention is without merit. The trial Court properly admitted the statements of the co-conspirators.

III

The Prosecutor's Comments

Correa contends that the prosecutor's comments in opening statement, referring to the appellant as "a big-time, high stakes, narcotics dealer here in Dade County," were inappropriate suggestions of enhanced and prior criminality. (Appellant's Brief at 39) As the trial judge noted, however, the characterization was really nothing more than a statement based on the evidence to be...