U.S. v. DeLucca, 79-5542
| Citation | 630 F.2d 294 |
| Decision Date | 10 November 1980 |
| Docket Number | No. 79-5542,79-5542 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Joseph R. DeLUCCA, Julio Enrique Perez, Jr. and Manuel Pozo, Defendants- Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Neal R. Sonnett, Benedict P. Kuehne, Miami, Fla., for DeLucca.
J. Stephen Salter, Benjamin Daniel, Birmingham, Ala., for Perez.
Richard H. Bite, Birmingham, Ala., (Court-Appointed), for Pozo.
Bill L. Barnett, Asst. U. S. Atty., Birmingham, Ala., for the U. S.
Appeals from the United States District Court for the Northern District of Alabama.
Before VANCE and GARZA, Circuit Judges, and ALLGOOD *, District Judge.
On May 9, 1979, a federal grand jury sitting in the Northern District of Alabama indicted five defendants in connection with a drug conspiracy in Birmingham. The co-defendants were Joseph DeLucca, Julio Perez, Manuel Pozo, Emilio DeLa Rosa and Kenneth Brown. Each of the defendants was charged with one count of conspiracy to distribute cocaine, 1 and two substantive counts of possession with intent to distribute 2 and distribution of cocaine. 3 A motion to disclose the identity of the government informer was filed by each of the defendants and the United States Magistrate denied the request, stating that the identity of the informer was known to the defendants.
A jury trial commenced on August 13, 1979. During the afternoon of the fourth day of the trial, the government moved to dismiss defendant Brown in the presence and hearing of the jury. The motion was granted without objection from any of the remaining defendants. The following morning, prior to the resumption of the testimony, with the jury present in the jury box, the government moved to dismiss defendant DeLa Rosa. This motion was also granted, after which DeLucca and the other defendants moved for a mistrial. The defendants' motion was denied and the trial continued as to the remaining defendants.
After the government rested its case, the court sua sponte dismissed the substantive counts against DeLucca. The jury, thereafter, found each of the defendants (including DeLucca) guilty of the charges against them. The defendants now appeal their convictions and sentences. Although this appeal raises several issues which merit our serious attention, we can find nothing in the record to indicate that reversible error was committed. Therefore, we affirm the convictions.
During March and April of 1979, Ed Bagley became unwittingly involved in an elaborate drug operation, which was centered around the Miami, Florida area. Bagley was having financial difficulty and was desperately in need of a large sum of money. He learned from Kenneth Brown, a friend of his, that a lawyer in Miami by the name of Joseph DeLucca might be able to help him. DeLucca was Brown's brother-in-law and had several clients in and around the Miami area. He agreed to meet with Bagley and arrangements were made for Bagley to fly to Miami.
Around the first of March, 1979, DeLucca met Bagley at the Miami airport. From there, they drove around for about an hour, at which time DeLucca asked Bagley if he would mind taking a risk. The subject was dropped for the time being and they proceeded to meet with a client of DeLucca's, Manuel Pozo. Pozo owned a tire store, as did Bagley in Birmingham. The trio rode around in DeLucca's car for approximately an hour and it was at this time that Pozo first approached Bagley about selling some cocaine in Birmingham. Although Bagley was somewhat nonplussed by the idea, he agreed to continue the discussion with Pozo later on that afternoon.
The meeting failed to materialize, but they were able to discuss the cocaine deal in greater detail that night at DeLucca's home. In addition to the trio, another man, later identified as Julio Perez, was present for the discussion. After being tutored in the specifics of cocaine, Bagley was given a sample to take back to Birmingham with him. It was established at the meeting that the group was interested in negotiating a substantial cocaine transaction in the Birmingham area.
Before boarding a plane back to Birmingham, Bagley threw away the cocaine sample. After returning to Birmingham, he called DeLucca to see about trying to work out a sale of tires to South America. Mr. DeLucca said that he did not know anything about the South American market and, therefore, could not help him. It was at this time that Bagley decided that, rather than enter into the illegal scheme, he would contact the Drug Enforcement Agency (D.E.A.). He did so, and agreed to assist the agency in their investigation of the cocaine operation, with the understanding that he would be paid for his services. Thereafter, Bagley went back to Miami for the purpose of setting up a cocaine transaction between Pozo and D.E.A. agents. A large deal was anticipated, which Pozo could not handle, so Bagley called DeLucca for suggestions. DeLucca arranged for Perez to contact Bagley, because he was better situated to handle larger quantities. Perez and Bagley discussed the specifics of the deal and decided to set up a small sale in Birmingham. This sale was to be followed by a larger one if it proved successful.
The small sale was consummated in Birmingham between Perez and two D.E.A. agents on April 15, 1979. Perez exchanged his sample of cocaine for $27,500.00. Three days later, a larger deal, which involved approximately $250,000.00 worth of cocaine, was arranged. By this time, Perez's bodyguard, DeLa Rosa, had joined him. They met with one of the agents in a Birmingham motel room. When Perez produced the cocaine, he and DeLa Rosa were arrested.
Appellants have raised several questions for our consideration. Two issues which are of particular concern to us are the government's motions to dismiss and the sufficiency of the evidence.
Prior to the start of the afternoon session on the fourth day of the trial, the government requested and was granted a dismissal of its case against one of the defendants-Brown. This was done in open court in the presence and hearing of the jury. No motions were made at that time by any of the remaining defendants and the trial continued on as usual throughout the remainder of the day. The following morning, before testimony was resumed, but again in the presence of the jury, the government moved to dismiss defendant DeLa Rosa. At this time DeLucca's attorney requested a bench conference and moved for a mistrial, citing as grounds the unusual and irregular manner in which the government chose to dismiss Brown and DeLa Rosa. The other defense attorneys joined in this motion. Neither DeLucca's attorney nor any of the other defense attorneys requested that a curative charge be given, maintaining instead that the prejudicial effect caused by dismissing two of the five defendants caused irreparable harm. The experienced trial judge, who had heard all of the evidence up to that time, and was in a position to observe the jury and the overall posture of the case, saw no prejudicial effect on the jury as to the remaining defendants and promptly denied the motion for a mistrial without giving any instruction to the jury.
Defendants argue on appeal that their case was severely prejudiced by the government's actions and that, as a result, it should be reversed. Indeed, there is potential prejudice inherent in the motions to dismiss because of the implications cast upon the defendant's rights. While one person's guilt or innocence may not be used as substantive evidence for the guilt of another, and should not reflect in any way on the question of guilt, the potential nevertheless exists. See e. g., United States v. Fleetwood, 528 F.2d 528, 532 (5th Cir.1976); United States v. King, 505 F.2d 602, 607 (5th Cir.1974); United States v. Baete, 414 F.2d 782, 783 (5th Cir.1969). It is not at all uncommon for one or more of multiple defendants to enter guilty pleas during a trial or for the Government to move for dismissal of its case against one or more defendants, as was done here. In fact, the government has a duty to dismiss as to any defendant as soon as it finds that the evidence as to any of the defendants is insufficient to support a conviction. Of course, the dismissal of one or more defendants should not be used by the government in any way to directly or impliedly suggest to the jury that the remaining defendants are guilty. We do not find from the record that the government did anything other than to ask for a dismissal promptly upon making a determination that the evidence was not sufficient to justify a conviction. The court can discern no ulterior motive implicit in the government's motion.
It should be emphasized that because of the defense's trial tactics, they deliberately refused to ask the court for a cautionary jury instruction. The trial judge, in his discretion, could have done so, but declined. Therefore, on appeal, the defendants cannot argue on the one hand that a curative charge could not have ameliorated the situation and on the other that the trial judge should have issued a cautionary statement. Due to the inconsistency of the two arguments and to the defendants' failure to raise objection at the trial, we are permitted to find reversible error only if the substantive rights of the accused were blatantly and severely jeopardized. Fed.R.Crim.P. 52(b). Viewed in this context, we will review the questions in two stages: first, with respect to whether a trial judge is always required to issue a curative instruction once the jury learns that a codefendant has been dismissed, and, second, with respect to whether, in this particular case, the failure of the trial court to give one constituted plain error. Because the specific question is one of first impression in this circuit, we address it with caution and dispatch.
The problem of a defendant's guilt by association...
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