U.S. v. Cruz
| Decision Date | 16 December 1986 |
| Docket Number | No. 85-8808,85-8808 |
| Citation | 805 F.2d 1464 |
| Parties | 22 Fed. R. Evid. Serv. 283 UNITED STATES of America, Plaintiff-Appellee, v. Carlos Bienuenido CRUZ, Roberto Cruz, Stephen Cruz, Teresa Irwin, Phillip Warren Jones, Dave Thomas, and Arthur Liggins Strong, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Wilmer Parker III, Asst. U.S. Atty., Allen H. Moye, Sp. Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellee.
Jay L. Strongwater, court-appointed, Atlanta, Ga., for Carlos Cruz.
Eugene A. Medori, Jr., court-appointed, Decatur, Ga., for Roberto Cruz.
Gil Howard, court-appointed, Atlanta, Ga., for Stephen Cruz.
R.C. Cougill, court-appointed, Lilburn, Ga., for Teresa Irwin.
Thomas R. Moran, court-appointed, Atlanta, Ga., for Phillip Warren Jones.
Michael R. Hauptman, court-appointed, Atlanta, Ga., for Dave Thomas.
Daniel Kane, Atlanta, Ga., for Arthur Liggins Strong.
Appeals from the United States District Court for the Northern District of Georgia.
Before JOHNSON and ANDERSON, Circuit Judges, and GARZA *, Senior Circuit Judge.
This case involves a large conspiracy to distribute cocaine in the Southeastern United States. A grand jury indictment returned on April 15, 1985 charged seventeen defendants with eighteen counts of various narcotic and gun offenses.
Following a jury trial appellant Carlos Cruz, the alleged ringleader of the conspiracy, was found guilty of twelve counts of possessing cocaine with the intent to distribute it in violation of 21 U.S.C. Sec. 841(a)(1), one count of conspiring with others to possess cocaine with the intent to distribute it in violation of 21 U.S.C. Sec. 846, one count of engaging in a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848, and one count of carrying or using a firearm during the commission of a crime of violence in violation of 18 U.S.C. Sec. 924(c). 1 Appellant Roberto Cruz, Carlos' cousin, was found guilty of conspiring to possess cocaine with intent to distribute, using a firearm during the commission of a crime of violence, and one count of possessing cocaine with intent to distribute. Appellant Stephen Cruz, Carlos' son, was found guilty only of conspiring to possess cocaine with intent to distribute. Appellant Teresa Irwin, Carlos' girlfriend, was found guilty on the conspiracy and firearms counts. 2 Appellant Phillip Warren Jones was found guilty of two possession counts as well as the conspiracy count. Appellant Dave Thomas was found guilty of the conspiracy count. Appellant Arthur Liggins Strong was found guilty of two counts of possessing cocaine and one count of conspiring to possess cocaine. 3 The evidence at trial tended to show that Jones, Thomas and Strong were all distributors in Carlos Cruz' cocaine network.
Following their convictions, each of the appellants was sentenced as follows: Carlos Cruz received a thirty-five year sentence for engaging in a continuing criminal enterprise. In addition he received fifteen-year concurrent sentences for his conspiracy to possess cocaine and for each of the twelve counts of possessing cocaine for which he was convicted. He also received a five-year consecutive sentence for violation of the firearms statute. Roberto Cruz received a twelve-year sentence for his participation in the conspiracy and a twelve-year concurrent sentence for his possession of cocaine. He also received a five-year consecutive sentence for his conviction on the firearms count. Stephen Cruz received a three-year sentence for conspiring to possess cocaine with intent to distribute. Teresa Irwin received a three-year sentence for her use of a firearm in connection with a crime of violence. She also received a three-year sentence for her participation in the conspiracy; however, that sentence was suspended and she was placed on five years probation. Appellants Strong and Jones were each sentenced to fifteen years for their participation in the conspiracy to distribute cocaine and both received concurrent fifteen-year sentences for each of their possession convictions. Appellant Thomas received a twelve-year sentence for participating in the conspiracy.
On appeal, in a dazzling array of combinations, appellants raise the following challenges to their convictions: (1) that their convictions for carrying a firearm during the commission of a crime of violence are, as a matter of law, improper because trafficking in drugs is not inherently a crime of violence; (2) that the provisions of the Federal Juvenile Delinquency Act, 18 U.S.C. Secs. 5031-5042, deprive the federal courts of jurisdiction over Stephen, or, alternatively, that they require reversal of Stephen's conviction; (3) that the testimony of GBI Agent Theodore Jackson was hearsay, and consequently inadmissible; (4) that Carlos' sentences on the conspiracy and possession counts merge, as a matter of law, with his conviction for organizing a continuing criminal enterprise, and consequently must be vacated; (5) that the trial court improperly denied Carlos' midtrial motion for a psychiatric examination to determine his competency; (6) that the government was improperly permitted to introduce into evidence the plea agreements of its cooperating witnesses during direct examination thereby impermissibly bolstering their testimony before it was attacked; (7) that Roberto and Irwin's trials should have been severed; (8) that the trial court improperly received partial verdicts from the jury prior to the completion of their deliberations; (9) that the district court failed to give a requested instruction on withdrawal from a conspiracy; (10) that the trial court improperly denied appellant Jones' midtrial motion to suppress certain wiretap evidence; (11) that the government's proof at trial was flawed because it varied in two respects from the indictment--first in proving a multiple conspiracy rather than a single one and second, in proving a date of possession for one of the counts which varied by one month from the date alleged in the indictment; (12) that the prosecutor was guilty of misconduct in his closing argument; (13) that the trial court erred by ruling in limine that the past convictions of appellants Roberto and Strong could be used to impeach their testimony should they take the stand; (14) that the trial court made various errors in its evidentiary rulings which were either prejudicial to the defendants or in violation of Fed.R.Evid. 404(b); (15) that appellant Roberto was not advised of his Miranda rights; (16) that evidence obtained during the stop of a car in Henry County was improperly admitted because the stop was made without probable cause; (17) that with respect to appellant Irwin the trial court did not make findings required by the Youth Corrections Act, 18 U.S.C. Sec. 5010(d) (1982) (repealed 1984); and (18) that the evidence was insufficient to support the verdicts reached by the jury.
For the reasons set out below we affirm appellants' convictions in all respects but two. Carlos' conviction on the conspiracy count merges, as a matter of law, with his conviction for organizing a continuing criminal enterprise. Hence, his fifteen-year concurrent sentence on the conspiracy count must be vacated. In addition, because drug trafficking is not a crime of violence, Carlos', Roberto's and Irwin's convictions for violating 18 U.S.C. Sec. 924(c) must be reversed.
Appellants Carlos Cruz, Roberto Cruz and Teresa Irwin challenge their firearms convictions under 18 U.S.C. Sec. 924(c). Section 924(c), as in effect at the time of appellants' indictment, provided that
Whoever, during and in relation to any crime of violence, ... uses or carries a firearm, shall, in addition to punishment provided for such crime of violence, be sentenced to imprisonment for five years. 4
A crime of violence is separately defined to mean:
a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
18 U.S.C. Sec. 16.
Appellants challenge their convictions under Sec. 924(c). They contend that the predicate crimes of which they have been convicted, organizing a continuing criminal enterprise, conspiracy to possess cocaine with intent to distribute and possession of cocaine with intent to distribute, are not felonies that, by their nature, involve a substantial risk of the use of physical force. 5
Because we conclude that the language of the statute, its legislative history and other evidence of congressional intent are, at best, ambiguous as to whether drug trafficking offenses are crimes of violence, we adhere to the principle of lenity which requires the strict construction of penal statutes. We thus reverse appellants' firearms convictions.
Section 16(b) defines a crime of violence as a felony that, by its nature, involves a substantial risk that violence may be used against people or property. On its face this language is ambiguous.
On the one hand, as appellants argue, there is the "by its nature" language of the statute. They contend that, by using the words "by its nature," Congress has made the determination that crimes of violence occur only when the predicate offense necessarily involves the use of force. If the predicate crime does not necessarily require the use of force, then it is not by its nature a crime of violence. Because the sale of drugs by an individual to his friend, relative, or even a stranger, is often a consensual transaction in which violence is not involved, the sale itself need not necessarily involve a substantial risk of physical force.
It is principally upon the basis of this argument that our sister courts...
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