U.S. v. Diaz
| Citation | 985 F.2d 575 |
| Decision Date | 02 September 1993 |
| Docket Number | D,Nos. 91-10095,91-10096 and 91-10100,RESTREPO-GONZALE,s. 91-10095 |
| Parties | NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Fausto Enrique DIAZ, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Adalberto Joseefendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Lazaro Rico PINZON, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Appeal from United States District Court for the District of Arizona; Nos. CR-89-368-01-PHX, CR-89-368-5-PHX-R and CR-89-00368-RCB.
Before FLETCHER, POOLE and T.G. NELSON, Circuit Judges.
This case arises from an undercover investigation of a Colombian cocaine smuggling operation which led to the indictment and conviction of Defendants Fausto Enrique Diaz, Lazaro Rico-Pinzon and Adalberto Jose Restrepo-Gonzalez (referred to collectively as "Defendants") for conspiracy to import and distribute more than five kilograms of cocaine, in violation of 21 U.S.C. §§ 963, 846. Three other individuals were indicted as well 1, but only the Defendants were apprehended. Defendants appeal their convictions and sentences on the basis of eight alleged trial court errors. We affirm.
A trial court's decision to admit evidence is reviewed for an abuse of discretion. United States v. Spillone, 879 F.2d 514, 527 (9th Cir.1989), cert. denied, 111 S.Ct. 210 (1990). District court errors are subject to the harmless error rule. United States v. Gillespie, 852 F.2d 475, 478 (9th Cir.1988).
Admission of informant Fraley's testimony explaining the meaning of unclear or codified phrases in the taped conversations did not violate FED.R.EVID. 701 because Fraley's testimony was rationally based on his perception and helpful to an understanding of his testimony or to the determination of a fact in issue. See United States v. Cox, 633 F.2d 871, 875 (9th Cir.1980), cert. denied, 454 U.S. 844 (1981). There was no other evidence the jurors could call upon to interpret the codified language other than Fraley's, and the interpretation was based on his direct perception of the events and his extensive experience with the codified language.
Any potentially prejudicial inferences resulting from Fraley's references to his fear of violence from certain non-party individuals were rendered harmless by the curative instructions given by the court.
We normally presume that a jury will follow an instruction to disregard inadmissible evidence inadvertently presented to it, unless there is an "overwhelming probability" that the jury will be unable to follow the court's instructions, and a strong likelihood that the effect of the evidence would be "devastating" to the defendant.
Greer v. Miller, 483 U.S. 756, 766 n. 8 (1987) (citations omitted). Improperly admitted evidence that a witness was in fear of a third party, not a defendant, is not so prejudicial as to render ineffective a curative instruction. United States v. Castleberry, 642 F.2d 1151, 1153 (9th Cir.), cert. denied, 452 U.S. 966 (1981).
Fraley's references to the Medellin cartel and the "highest boss" did not violate FED.R.EVID. 402 or 403 for three reasons.
First, testimony regarding the Medellin cartel is relevant and non-prejudicial to the extent a defendant's actions could be "related to specific cartel members." United States v. Echavarria-Olarte, 904 F.2d 1391, 1397-98 (9th Cir.1990). Fraley's references did relate to specific cartel members: Fraley knew his smuggling involved the Medellin cartel because he was personally introduced to cartel leaders in 1988, in Bogota; he had personal knowledge that Don Pedro was directly below the highest level of the cartel; and, it was established that the Defendants worked for Don Pedro.
Second, the Government asserts (and the Defendants do not contest) that most of the references to the cartel were elicited by defense counsel during cross-examination.
And, finally, Fraley's explanation that the terms the "doctor" and his "offices" actually referred to leaders of the cartel was relevant to aid the jury in understanding the content of the tapes.
Admission of Fraley's testimony about prior smuggling activities did not violate FED.R.EVID. 404(b).
"Rule 404(b) prohibits the government from introducing evidence of a defendant's prior crimes to show that the defendant has a bad character and therefore is likely to have committed the crime with which he is charged." United States v. McKoy, 771 F.2d 1207, 1213 (9th Cir.1985). The admission of any relevant evidence of other crimes is permissible under Rule 404(b) except where the evidence proves only the defendant's criminal disposition. Id.
Diaz has no legitimate basis to object to the testimony since none of Fraley's testimony concerning past smuggling operations implicated Diaz, and the court gave proper limiting instructions.
Fraley's testimony regarding the prior crimes of Restrepo and Rico-Pinzon was properly admitted under Rule 404(b) because it was offered to show more than Restrepo and Rico-Pinzon's criminal disposition. The testimony was offered to explain how Fraley knew some of the Defendants, how he was so easily able to become involved in another cocaine operation, how the coded terms in the taped conversations came to be used, the common scheme and association among the indicted conspirators and, (in response to the entrapment instruction requested by Defendants Restrepo and Rico-Pinzon) the predisposition of some of the Defendants. See United States v. O'Connor, 737 F.2d 814, 819 (9th Cir.1984) (), cert. denied, 469 U.S. 1218 (1985).
Finally, we conclude that the overwhelming evidence against the Defendants in recorded conversations and post-arrest statements renders any allegedly improper evidence harmless under FED.R.CRIM.P. 52(a). United States v. Crowley, 720 F.2d 1037, 1045 (9th Cir.1983), cert. denied, 465 U.S. 1029 (1984); Echavarria-Olarte, 904 F.2d at 1399.
The trial court did not abuse its discretion in denying the Defendants' motion for a mistrial based on a cooperation agreement between the USCS and witness Joseph Benoit.
Even if the government improperly denied Defendants access to a witness, there is no reversible error unless, in light of the whole record, the Defendants had been "unfairly handicapped." United States v. Cook, 608 F.2d 1175, 1182 (9th Cir.1979) (en banc), cert. denied, 444 U.S. 1034 (1980). Defendants were not unfairly handicapped by the alleged denial of pretrial access to Benoit because defense counsel made no attempt to interview the witness, failed to request the court to intervene, and had the opportunity to cross-examine the witness at length. See Id.
We review de novo the question of whether an impermissible rebuttal argument violates the Fifth Amendment. United States v. Gray, 876 F.2d 1411, 1416 (9th Cir.1989), cert. denied, 495 U.S. 930 (1990).
"A prosecutorial statement is impermissible if it is manifestly intended to call attention to the defendant's failure to testify, or is of such a character that the jury would naturally and necessarily take it to be a comment on the failure to testify.' " Gray, 876 F.2d at 1416 (citation omitted). "A comment on the failure of the defense as opposed to the defendant to counter or explain the testimony presented or evidence introduced is not an infringement of the defendant's Fifth Amendment privilege." United States v. Castillo, 866 F.2d 1071, 1083 (9th Cir.1988) (citations omitted).
The prosecutor's statements were permissible under Castillo because they were a comment on Diaz's counsel's failure to explain how Diaz got to Phoenix. Therefore, Diaz's Fifth Amendment rights were not violated by the prosecutor's statements.
Diaz's Fifth Amendment rights were not violated by the testimony of a witness because such testimony does not constitute a state action. Diaz is probably arguing that the prosecutor's act of soliciting Bailey's comment was a state action in violation of Diaz's Fifth Amendment rights. Even framed in this way, the claim is meritless. Bailey was referring to defendants in general, not Diaz in particular. Therefore this Defendant's silence was not implicated.
Under Ariz.Dist.Ct.R. 12(b) and FED.R.CRIM.P. 33, the trial court lacked jurisdiction to grant Defendants' Motion to Submit Written Interrogatories to Jurors.
Local Rule 12(b) requires motions to submit written interrogatories to trial jurors to be made within the time granted for a motion for a new trial. FED.R.CRIM.P. 33 requires motions for new trials be made within seven days unless based on "newly discovered evidence," in which case the motion may be made within two years.
In the present case, the motion was untimely because (1) it was filed over two months after the jury verdict, and (2) did not constitute "newly discovered evidence" inasmuch as Diaz's counsel was aware of it the day of the verdict.
We review de novo the trial court's interpretation of the Sentencing Guidelines. United States v. Pemberton, 904 F.2d 515, 516 (9th Cir.1990).
We reject Defendants'...
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