U.S. v. Diaz
| Citation | 190 F.3d 1247 |
| Decision Date | 30 September 1999 |
| Docket Number | 98-2447,Nos. 97-2669,s. 97-2669 |
| Parties | (11th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. EDILIO DIAZ, Defendant-Appellant |
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
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Appeals from the United States District Court for the Northern District of Florida D. C. Docket No. 1:96-cr-19-MMP
Before ANDERSON, Chief Judge, RONEY, Senior Circuit Judge, and COOK*, Senior District Judge.
Edilio Diaz appeals the convictions, the 292-month sentence, and the order of forfeiture entered against him following a jury trial on charges of conspiracy to distribute cocaine, 21 U.S.C. 841, 846; money laundering, 18 U.S.C. 1957; and criminal forfeiture, 21 U.S.C. 853. Diaz raises sixteen claims of error. We affirm on all issues concerning his convictions, sentence, and forfeiture. Due to what we determine to be a technical error in the judgment, we vacate and remand so that the error can be corrected. We dispose of many issues summarily, but some require extended discussion.
The evidence at trial established that while based in Miami, Florida, Diaz supplied forty to sixty kilograms of cocaine to Stafford Easterling and other co-conspirators for distribution in Gainesville, Florida over a ten-year period from about 1985 to 1995. The evidence presented by the government at trial consisted primarily of the testimony of Stafford Easterling and other witnesses who had been engaged to a greater or lesser degree in the conspiracy and who had entered into plea agreements. The prosecution's case was also supported by evidence of telephone toll records indicating hundreds of calls between Diaz and Easterling during the time of the conspiracy. Further facts will be discussed as warranted by the issues addressed.
Diaz contends that because he was charged in the indictment with conspiracy to distribute cocaine, and the jury was instructed on conspiracy to possess with intent to distribute cocaine, there was a constructive amendment to the indictment. See 21 U.S.C. 841(a)(1),846. Diaz argues that the instruction essentially broadened the possible basis for conviction beyond what is contained in the indictment. When it occurs, a constructive amendment violates the Fifth Amendment by exposing the defendant to criminal charges not made in the indictment against him. United States v. Keller, 916 F.2d 628,633(11th Cir. 1990), cert. denied, 499 U.S. 978, 111 S.Ct. 1628, 113 L.Ed.2d 724(1991).
The most troublesome thing about this issue, on its face, is the reference in the record from time to time to a conspiracy "to possess with intent to" distribute, rather than to conspiracy to distribute, the crime with which the defendant was charged and convicted. Even the judgment itself refers to the wrong crime. A critical analysis of the record and the arguments made asserting error in this regard, however, reveals that, in the words of the Bard, it is "much ado about nothing."
This is a direct appeal from a criminal conviction. The defendant was indicted for conspiracy to distribute cocaine, 21 U.S.C. 841(a)(1),846. He was tried for this offense. The jury returned a guilty verdict on a correct verdict form for "conspiracy to distribute."
In its instructions to the jury, however, the court stated that the defendant had been charged with conspiracy to possess with the intent to distribute. 21 U.S.C. 841(a)(1),846. The court did not specifically give any instructions as to the possession element, or as to the distribution element either, for that matter. The court instructed very carefully on what it took to make a conspiracy, and the way in which credibility decisions should be approached. There was no objection made to the instructions, and when invited by the judge, the attorneys did not request any instruction that was not given.
All that appears in the trial record is that after the instructions to the jury were completed, the government called to the attention of the trial judge that the verdict form about to be submitted to the jury was wrong. The verdict form was changed to reflect the charge in the indictment, and the judge simply told the jury that the verdict form was being changed with a "word or two" to reflect the indictment. The court instructed the jury that the charge in the indictment, which was given to the jury, was the charge that it should consider. No one suggested that the written instructions to be sent to the jury room also referred to a conspiracy to possess with the intent to distribute.
The mistake appears in the record in other places. First, at sentencing the judge stated that
Second, the Presentence Investigation Report (the "PSI") submitted by the probation department at sentencing showed on its face that the defendant had been convicted of conspiracy to possess cocaine with the intent to distribute. The discussion in the report, however, focused on the correct conspiracy to distribute crime.
Third, and most troublesome of all, the judge signed a judgment for conspiracy to possess with the intent to distribute, a crime with which the defendant was not charged, and of which he was not found guilty.
On its face, of course, the judgment cannot stand as entered. It is fundamental error for a court to enter a judgment of conviction against a defendant who has not been charged, tried or found guilty of the crime recited in the judgment. Even though the judgment cannot stand as entered, it is nevertheless possible for this court to vacate the judgment and remand the case to the district court for entry of a judgment in accordance with the charge and the jury verdict. This would be appropriate, however, only if the erroneous entry of the judgment was considered a clerical error, and the correction of the judgment would not prejudice the defendant in any reversible way.
In our judgment, that is exactly the situation on this appeal and this is the proper disposition of this case for the following reasons:
First, we have reviewed all the other points of error as to the conviction argued on this appeal and find them to be without merit. But for this error the judgment would be affirmed.
Second, there was no apparent confusion as far as the jury was concerned. They had the right verdict form and were told to follow the indictment. The reference to conspiracy to possess with the intent to distribute was but one statement in several pages of instructions without elaboration. The instructions focused on conspiracy and credibility, not on possession or distribution. As the case was presented to the jury in closing argument by the attorneys, the charge of conspiracy to distribute cocaine was made quite clear. The transcript of the record of closing argument shows that the word "possession" was not mentioned by either lawyer.
Third, the thrust of the defense in this case was the lack of credibility of the government's witnesses. There was little, if any, suggestion that the evidence they gave did not satisfy the elements of the crime charged.
Fourth, although the jury was not specifically charged on the indicted crime of conspiracy to distribute, there was no objection or request by defense counsel, although objections and requests were specifically invited by the court, so that cannot be claimed as error on this appeal. Reading the charges as a whole, it appears that the jury was adequately charged.
Fifth, if the testimony of the government's witnesses is true, the evidence overwhelmingly proves that the defendant was guilty of conspiracy to distribute cocaine. Whether that testimony was true was squarely put to the jury by both the instructions of the court and the argument of both counsel. It was the jury's job to determine who was telling the truth, and who was not.
Sixth, both crimes are charged under the same statutes: 21 United States Code sections 841 and 846. The sentencing guidelines are the same, whether the defendant was convicted of conspiracy to distribute cocaine or conspiracy to possess with the intent to distribute.
Seventh, this is a conspiracy charge and the attempt to differentiate between these two crimes from a practical standpoint is a distinction without a difference. Although the defendant has cited cases drawing the clear and well-settled distinction between the substantive crimes of possession and distribution, that distinction fades when a conspiracy is charged. No cases have been cited which draw the distinction that the defendant is attempting to make in crimes of conspiracy. One might be guilty of the substantive crime of distribution without being guilty of possessing cocaine, for instance in brokering sales between the persons who actually possess the cocaine and the buyers. One might be guilty of possessing cocaine with intent to distribute without any actual distribution. Possession is a necessary element of the first crime, distribution a necessary element of the second. In a conspiracy, however, neither actual possession nor actual distribution is a necessary element of the crime. Only an agreement is necessary. A fundamental precept of the law of conspiracy converts any distinction between conspiracies to commit these two crimes into a non-issue: each conspirator is criminally responsible for all parts of the conspiracy. It is difficult to hypothesize a conspiracy to distribute cocaine where the conspiracy does not include an agreement that at least one of the conspirators will in fact possess the cocaine that is to be distributed. There cannot be distribution without cocaine. There cannot be cocaine without possession. If there is an agreement that any member of the...
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