U.S. v. Delgado
| Decision Date | 25 June 1990 |
| Docket Number | No. 88-5622,88-5622 |
| Citation | 903 F.2d 1495 |
| Parties | 30 Fed. R. Evid. Serv. 1038 UNITED STATES of America, Plaintiff-Appellee, v. Juan DELGADO, Dagoberto Silva, Henry Escobar, Defendants-Appellants. Non-Argument Calendar. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Dennis G. Kainen, Law Offices of Alan L. Weisberg, Miami, Fla., for Juan Delgado.
Leonard Rosenberg, P.A., Miami, Fla., for Dagoberto Silva.
Roy E. Black, Black and Furci, P.A., Miami, Fla., for defendants-appellants.
Frank H. Tamen, Linda Collins-Hertz, Mayra R. Lichter, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before TJOFLAT, Chief Judge, FAY and COX, Circuit Judges.
Appellants, Dagoberto Silva, Juan Delgado, and Henry Escobar, appeal their convictions on drug-trafficking charges. Escobar also challenges the supervised release portion of his sentence. We affirm the convictions of all three appellants but vacate their sentences in part and remand for resentencing.
On March 16, 1987, a United States Customs Inspector in Miami, Florida, examined a shipping container that purportedly contained lawn furniture. The inspector found lawn furniture inside the container but also discovered what appeared to be a false wall. The inspector drilled through the back wall of the container and discovered cocaine in a hidden cavity of the container. The United States Customs Service was notified, and a Drug Enforcement Administration Agent, Mark Averi, was assigned to follow the container to its ultimate destination. Working undercover, Agent Averi drove with the shipping company to deliver the container.
The container was delivered to the Ajami Import-Export office where the driver of the truck was greeted by Abdul Ajami and appellant Escobar. Ajami told the driver of the truck to take the container to a warehouse at another location--Ajami and Ricardo Duran would lead the way in their own car. Upon arrival, the truck was backed into the warehouse, and the container was unloaded. At that time, Agent Averi was able to walk inside the warehouse for about five to ten minutes. Agent Averi then left the warehouse, returned to his own vehicle, and immediately went back to the warehouse to establish surveillance.
Surveillance continued through 1:00 p.m. the next afternoon, when a car carrying two people and a van carrying three people arrived at the warehouse. The five people entered the warehouse and remained there for about one hour. Finally, four people emerged from the warehouse carrying small cardboard boxes. Each person carried one box at a time, and each made about ten or twelve trips. The boxes were loaded into the van.
When it was apparent that the last box had been loaded, DEA Agent Peter Culver ordered approximately seven agents to arrest the five individuals and to seize the boxes. This action was taken before obtaining either a search or arrest warrant. Ajami, Duran, and appellants Silva and Delgado were arrested outside the warehouse, while appellant Escobar was arrested inside the warehouse.
Inside the warehouse, Agent Culver found several tools, including two crow bars, a come-along, an electric saw with blades, and an extension cord. From the van, agents seized twenty-two cardboard boxes, as well as one box from the trunk of the car. Each box contained a large quantity of cocaine: all told, the agents seized 634 kilograms of cocaine with an approximate street value of between $7.6 million and $10.8 million.
On March 26, 1987, a federal grand jury returned an indictment, charging Ajami, Duran, and appellants with (1) one count of conspiracy to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1) (1988); (2) one count of possession of cocaine with intent to distribute it in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2; and (3) one count of importing cocaine in violation of 21 U.S.C. Secs. 952(a), 960(a)(1), and 18 U.S.C. Sec. 2.
Appellants were tried together before a jury. 1 During the trial, the Government dismissed the importation charge against Silva and Delgado. Silva and Delgado were convicted on the remaining two counts and both were sentenced to eleven years imprisonment on the conspiracy count and eleven years imprisonment with five years supervised release on the possession count. Escobar was convicted on the conspiracy and possession counts but was acquitted on the importation count. He received sentences of twenty years imprisonment for each count with five years of supervised release to follow imprisonment for the possession count. The sentences for all of the appellants were to run concurrently.
All three appellants challenge their convictions on essentially the same five grounds. Specifically, they argue that (1) the prosecutor made highly prejudicial remarks during closing argument, and the district court should have granted a mistrial; (2) the court abused its discretion in refusing to admit into evidence Ajami's plea agreement; (3) the court abused its discretion in refusing to allow cross-examination of Agent Culver with regard to a post-arrest statement by Ajami or to allow a record of that statement into evidence; (4) the conspiracy and possession convictions were based on insufficient evidence; and (5) all of the evidence seized from the warehouse and the van was seized in violation of appellants' fourth amendment rights. Additionally, Escobar argues that the district court abused its discretion in admitting into evidence his Colombian Master Card. Furthermore, he argues that the court erred in imposing a five-year term of supervised release for the possession conviction. Finally, Delgado and Silva argue that the district court abused its discretion in admitting into evidence two airline tickets in the names of Escobar and Silva. We address each of these arguments in turn.
During closing argument, attorneys for the appellants argued at length that the focus of the Government's case had improperly shifted from Ajami to the appellants. According to the appellants, Ajami masterminded the operation and, therefore, the jury should focus its attention on him. The prosecutor stated in rebuttal that the defendants wanted the jury to
[i]gnore the reasonable and sensible conclusions that when you have got just single packages like this that are worth more money than a lot of honest working people make in a year's time on an honest job--ignore that; [rather, the defendants wanted the jury to] focus [its] attention ... on people who have either pled guilty in this case or are not shown to have had an active role at all.
Counsel for the appellants objected to this statement. They noted, correctly, that Ajami had pled guilty to an unrelated offense in exchange for the Government's dismissal of the charges in the indictment that gave rise to this case. The court instructed the jury to disregard both the prosecutor's and the defense attorney's comments.
The prosecutor's statement was indeed incorrect and, in certain circumstances, such a statement might be prejudicial. If it were prejudicial, we would reverse a district court's decision not to grant a mistrial only if the court failed to give a curative instruction or, if it did give an instruction, the statement was "so highly prejudicial as to be incurable." United States v. Slocum, 708 F.2d 587, 598 (11th Cir.1983). In this case, however, we need not examine the effectiveness of the court's curative instruction since we can find no possibility of prejudice from the prosecutor's remarks. If the appellants were attempting to convince the jury to blame Ajami for the crimes that occurred, we are at a loss as to how the statement that Ajami pled guilty to those crimes could be prejudicial to the appellants. In fact, the prosecutor's misstatement supports the appellants' arguments. We hold that the district court properly refused to grant a mistrial.
Appellants argue that the district court abused its discretion in refusing to admit into evidence the plea agreement and colloquy between Ajami and the Government. In that agreement, Ajami pled guilty to importing certain artifacts from Ecuador by means of a false or fraudulent invoice, and the Government agreed to dismiss the charges contained in the March 26, 1987 indictment. Appellants would have us believe that the agreement and colloquy before the court constitute hearsay evidence that should have been admitted under Fed.R.Evid. 801(d)(2)(D) as admissions by a party opponent. According to the appellants, the Government's decision to dismiss the charges in the indictment involved in this case was an admission that Ajami was not guilty of the alleged conspiracy. Such an admission, in turn, would constitute evidence that the appellants did not conspire with Ajami.
We cannot agree with the appellants. There are many factors that influence the government's decision not to prosecute a defendant on certain charges, one of the most common being the government's interest in obtaining the cooperation of the defendant as a witness against codefendants. Certainly, we cannot attribute the government's decision not to prosecute to an independent determination that the defendant is not guilty. Furthermore, by holding that the government admits innocence when it dismisses charges under a plea agreement, we would effectively put an end to the use of plea agreements to obtain the assistance of defendants as witnesses against alleged co-conspirators.
Even if we did agree with the appellants that the government's decision to drop certain charges might constitute an admission of innocence, adopting their argument would create other serious problems at trial, and evidence of the government's decision likely would not be admissible. The government's decision not to prosecute a defendant on certain charges reflects, at best, the government's opinion that the defendant is not guilty. Thus,...
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