U.S. v. De La Cruz

• Decision Date: 05 November 1992
• Docket Number: Nos. 92-1279,92-1347,s. 92-1279
• Citation: 996 F.2d 1307
• Parties: 37 Fed. R. Evid. Serv. 1133 UNITED STATES, Appellee, v. Efrain DE LA CRUZ, Defendant, Appellant. UNITED STATES, Appellee, v. Luis TORRES, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1307

996 F.2d 1307

37 Fed. R. Evid. Serv. 1133

UNITED STATES, Appellee, v. Efrain DE LA CRUZ, Defendant, Appellant.

UNITED STATES, Appellee, v. Luis TORRES, Defendant, Appellant.

Nos. 92-1279, 92-1347.

United States Court of Appeals, First Circuit.

Heard Nov. 5, 1992.

Decided June 24, 1993.

James E. Carroll with whom Peabody & Arnold, Boston, MA, was on brief, for defendant, appellant Efrain De La Cruz.

William H. Kettlewell with whom Dwyer, Collora & Gertner, Boston, MA, was on brief, for defendant, appellant Luis Torres.

Geoffrey E. Hobart, Asst. U.S. Atty., with whom A. John Pappalardo, U.S. Atty., and Jeffrey A. Locke, Asst. U.S. Atty., Boston, MA, were on brief, for appellee.

Before BREYER, Chief Judge, CYR and BOUDIN, Circuit Judges.

BOUDIN, Circuit Judge.

Efrain De La Cruz, Luis Torres and others were charged in a one-count indictment with conspiracy to possess cocaine with intent to distribute. 21 U.S.C. §§ 841, 846. Torres pleaded guilty; De La Cruz was convicted following a jury trial. In this appeal, De La Cruz challenges his conviction on a number of grounds, and both he and Torres contest the district court's calculation of their sentences. We affirm.

The events in this case are part of a larger story revolving around a so-called sting operation conducted by the FBI and other law enforcement agencies. In the course of this operation, Colombian drug dealers delivered 615 kilograms of cocaine to a man named Pedro Alvarez who was secretly cooperating with the authorities. The cocaine was transported into the United States and the FBI lodged it in Massachusetts while awaiting directions from the Colombian drug dealers. In describing the ensuing events, we confine the story to facts pertinent to this case.

The cocaine arrived in the United States on or about June 4, 1991, and on June 5, the Colombian suppliers directed that a portion--240 kilograms--be turned over to the "Lucho" group. Alvarez made contact with a man purporting to be Lucho and it was agreed that Lucho's associates would take delivery at 5 p.m. on June 12, in the parking lot of a Holiday Inn in Taunton, Massachusetts. Two undercover officers--FBI Agent Dillon and Providence Police Officer Colon--appeared at the arranged time and place and saw a gold Cadillac with three occupants driving slowly through the parking lot. De La Cruz was the driver of the Cadillac and Torres was a passenger; the other passenger was Jose LaPaix.

The agents flashed their lights and Torres left the car, approached the agents, and discussed the mechanics of the drug transfer. Torres said that he had brought three vans with him from New York equipped with hidden compartments but had left them in Newton, Massachusetts. It was agreed that Torres would drive to Newton with his companions to collect the vans and would contact Dillon and Colon when he returned to the Holiday Inn. Torres, De La Cruz and LaPaix departed in the Cadillac.

Several hours later, around 9 p.m., Agent Dillon received a telephone message that Torres was waiting at the Holiday Inn. The agents returned to the parking lot. Torres approached their car and told them that he had the vans; but he said that having seen a police car driving through the lot, he had directed his "rollos"--a term used in the drug trade to refer to an underling such as a bodyguard or driver--to move the vans out of the lot. Torres and the agents then agreed to meet at the rear of the lot.

A few minutes later, Torres arrived there driving a blue van bearing New York plates with one Ruben Rodriguez seated next to him. A minute later De La Cruz pulled alongside the agents' car driving a red van with New York plates. The red van was followed by the gold Cadillac, now driven by LaPaix, with one Sarah Tavares as a passenger. The third van did not appear and a few minutes later Torres signaled the agents to lead the way to where the cocaine was stored.

The FBI had located the shipment in a warehouse in Middleboro, Massachusetts, equipping the facility with video and audio recording equipment. Within half an hour, the caravan of vehicles arrived at the warehouse and parked in front. Agent Dillon, seeking to prevent too many of the suspected gang members from concentrating in one place, asked Torres to move one of his vehicles away to avoid attracting attention. Torres and LaPaix conferred; they then spoke with De La Cruz, who left the red van and drove the Cadillac across the street into a parking lot shared by a gas station and an ice cream parlor.

De La Cruz drove slowly through this lot, which was partly lit and in view of a number of people. He then drove back across the street to an unlit vacant lot where he parked. This new lot was adjacent to the warehouse. De La Cruz left the Cadillac and started back toward the warehouse. He was then arrested by FBI agents. When arrested, he was carrying both a beeper and a portable telephone.

Meanwhile, after De La Cruz left the warehouse parking lot in the Cadillac, Torres backed the blue van into the bay area of the warehouse, where he was joined by Rodriguez and LaPaix. The three men removed the rear seats and floor panel of the van, uncovering a hidden compartment. They then began loading the cocaine into the van. After about 70 kilograms were loaded into the compartment, the three men were arrested. Torres, when arrested, had in his pocket a business card with the telephone number used to reach De La Cruz's beeper.

Subsequently, all five of those present at the warehouse--Torres, De La Cruz, Rodriguez, LaPaix and Tavares--were indicted for conspiring to possess cocaine with intent to distribute. In early November 1991, some weeks before trial, LaPaix entered into plea negotiations and, on November 7, he made a limited proffer to the government for purposes of persuading it to treat him at sentencing as a minor participant. He made clear that he would refuse to testify for the government at trial and that he wanted his meeting with the government to remain confidential.

During the proffer, LaPaix was asked how De La Cruz became involved. He responded that they were long-time friends and that prior to June 12 neither of them knew about the cocaine pick-up nor was De La Cruz promised payment for his help. Shortly after November 7, LaPaix' counsel told the other defense counsel--in what detail is not clear--about the meeting with the government and its subject matter. Prior to trial De La Cruz advised LaPaix' counsel that he intended to call LaPaix as a witness.

Trial began on November 18, 1991. Immediately before the jury was impaneled, Torres and LaPaix pled guilty. The government dismissed the indictment as to Tavares. De La Cruz and Rodriguez then went to trial. On November 22, a Friday, the government rested and Rodriguez began to testify in his own defense. Rodriguez did not return to court the following Monday. The court refused De La Cruz's request to sever or for a mistrial and the case proceeded against De La Cruz and the now absent Rodriguez.

On November 25, the sixth day of trial, De La Cruz moved for production of any exculpatory material created by LaPaix' proffer. In an ex parte submission, the government provided to the court a summary of LaPaix' proffer. Over the government's objection the court found the material to be subject to production under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The government then disclosed to De La Cruz the contents of LaPaix' proffer, so far as it concerned De La Cruz, as follows:

[During the drive from New York to Boston] LaPaix contacted Efrain De La Cruz. And De La Cruz drove LaPaix and Torres to the Holiday Inn in Taunton for the meeting with Special Agent Dillon.... As to why there were so many telephone calls between De La Cruz and LaPaix prior to the pickup of the cocaine or prior to the drive to Taunton, he indicated that they were long-time friends from the Dominican Republic.... The import of the statement was that De La Cruz did not know prior to June 12 about the cocaine pickup in the same way that LaPaix did not know prior to June 12th.

De La Cruz then called LaPaix as a witness, advising the court that the proffer bore out De La Cruz' defense that he was unaware of the drugs and was merely helping out a childhood friend (LaPaix) find his way around Massachusetts. LaPaix was summoned but, in a voir dire examination, LaPaix invoked the Fifth Amendment and refused to answer all questions other than his name and address. De La Cruz objected to the claim of privilege in light of LaPaix' prior guilty plea. The district court nevertheless sustained the claim of privilege, observing that government cross-examination could produce testimony that would inculpate LaPaix not merely in the instant transaction but in other transactions.

On November 26, the jury found De La Cruz and Rodriguez guilty. De La Cruz was sentenced to 188 months imprisonment and Torres to 235 months. These appeals followed. In this court, De La Cruz attacks his conviction by challenging the sufficiency of the evidence, the denial of his motion to sever or for a mistrial after Rodriguez disappeared, and the treatment of the proffer and LaPaix' claim of privilege. We address these issues first and then consider the claims of both De La Cruz and Torres concerning their sentences.

We start with De La Cruz' attack on the adequacy of the evidence and find that the evidence as to his knowledge of the conspiracy was circumstantial, arguably thin, but clearly sufficient. The evidence, considered in the light most favorable to the government, see United States v. Ortiz, 966 F.2d 707, 711 (1st Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1005, 122 L.Ed.2d 154 (1993), shows that De La Cruz appeared at both meetings accompanying three other men involved in the drug deal (Torres, LaPaix and Rodriguez); that De La Cruz drove to Taunton one of the vans intended to carry the drugs; that he took instructions from...