U.S. v. Diaz

• Decision Date: 27 December 1990
• Docket Number: D,156,Nos. 2,s. 2
• Citation: 922 F.2d 998
• Parties: UNITED STATES of America, Appellee, v. Joaquin Augusto DIAZ and Jose Guillermo Guapacha, Defendants-Appellants. ockets 89-1571, 89-1573.
• Court: U.S. Court of Appeals — Second Circuit

Page 998

922 F.2d 998

59 USLW 2462

UNITED STATES of America, Appellee, v. Joaquin Augusto DIAZ and Jose Guillermo Guapacha,

Defendants-Appellants.

Nos. 2, 156, Dockets 89-1571, 89-1573.

United States Court of Appeals, Second Circuit.

Argued Oct. 3, 1990.

Decided Dec. 27, 1990.

Eric Friedberg, Asst. U.S. Atty., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty. for the E.D.N.Y., Susan Corkery, Asst. U.S. Atty., Brooklyn, N.Y., on the brief), for appellee.

Henry H. Rossbacher, Los Angeles, Cal. (Harry C. Batchelder, Jr., New York City, Sullivan, Walsh, Rossbacher & Wood, Los Angeles, Cal., on the brief), for defendant-appellant Diaz.

William I. Aronwald, White Plains, N.Y. (Daniel J. Pykett, Aronwald & Pykett, White Plains, N.Y., on the brief), for defendant-appellant Guapacha.

Before FEINBERG, VAN GRAAFEILAND, and KEARSE, Circuit Judges.

KEARSE, Circuit Judge:

Defendants Joaquin Augusto Diaz and Jose Guillermo Guapacha appeal from final judgments entered in the United States District Court for the Eastern District of New York following a jury trial before I. Leo Glasser, Judge, convicting them on one count of conspiracy to transport monetary instruments from New York to Colombia, South America, in furtherance of a narcotics distribution operation, in violation of 18 U.S.C. Secs. 371, 1956, and 3551 et seq. (1988); and two counts charging money laundering offenses occurring on May 16, 1989, in violation of 18 U.S.C. Secs. 1956 and 3551 et seq. and Sec. 2 (1988). In addition, Diaz was convicted of two money laundering offenses occurring on May 19, 1989, in violation of 18 U.S.C. Secs. 1956, 2, and 3551 et seq.; and Guapacha was convicted on one count of conspiracy to possess with intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. Secs. 846 and 841(b)(1)(A)(ii)(II) (1988). Diaz was sentenced principally to five concurrent 78-month terms of imprisonment, to be followed by a three-year term of supervised release; Guapacha was sentenced principally to four concurrent 188-month terms of imprisonment, to be followed by a five-year term of supervised release. On appeal, defendants contend chiefly that their statutory and constitutional rights were violated when the grand jury that indicted them was selected and empaneled by a magistrate rather than a judge. For the reasons below, we affirm the judgments of conviction.

I. BACKGROUND

The present prosecution was based largely on the testimony of two government-paid informants, brothers Mario Pena ("Mario") and Hernaldo Pena ("Hernaldo"), and of codefendant Angelica Araya, ringleader of a narcotics operation who testified pursuant to a cooperation agreement. Since there is no challenge to the sufficiency of evidence at trial, a brief summary of that evidence, taken in the light most favorable to the government, will suffice.

In April 1989, Mario and Hernaldo met Araya in Cartagena, Colombia. Araya, engaged in the narcotics trade in New York, enlisted Mario and Hernaldo to assist her Mario flew to Miami and reported to the Federal Bureau of Investigation ("FBI"), to which he delivered the money. He attempted to withhold $15,000 as a "commission" but was required to turn over the entire amount.

in transporting large amounts of money from New York to Colombia. On May 16, 1989, at Araya's apartment in New York, Araya introduced Mario to Diaz and Guapacha, who worked for her. Diaz and Guapacha went to collect money from elsewhere and, when they returned, helped Mario pack approximately $221,000 into pouches in a T-shirt provided by Araya for that purpose and into his shorts. Araya then drove Mario to the airport.

Araya had made several telephone calls to Mario to inquire whether his brother Hernaldo could supply Araya with cocaine. Eventually it was arranged that Hernaldo would both transport money to Colombia for Araya and sell her 25 kilograms of cocaine. A few days after Mario's receipt of the $221,000, Hernaldo was driven to Araya's apartment by an undercover FBI agent. Araya and Diaz were present, and Hernaldo was given $67,800 to be transported to Colombia. Hernaldo then left the apartment, ostensibly to get the promised cocaine. Diaz left the apartment with him, having been instructed by Araya to get Guapacha so that he and Diaz could deal with the expected cocaine delivery. Hernaldo and Diaz were seen on the street in front of Araya's apartment by FBI agents conducting surveillance. When Diaz returned with Guapacha, they were placed under arrest.

Diaz, Guapacha, and Araya were indicted in a six-count indictment. The indictment charged each of them with one count of conspiracy to possess with intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. Secs. 846 and 841(b)(1)(A)(ii)(II) (count 1); one count of conspiracy to transport monetary instruments from New York to Colombia, in furtherance of a narcotics distribution operation, in violation of 18 U.S.C. Secs. 371, 1956, and 3551 et seq. (count 2); two money laundering offenses on May 16, 1989, in violation of 18 U.S.C. Secs. 1956, 2, and 3551 et seq. (counts 3 and 4); and two money laundering offenses on May 19, 1989, in violation of 18 U.S.C. Secs. 1956, 2, and 3551 et seq. (counts 5 and 6).

Prior to trial, defendants moved to dismiss the indictment on the grounds (1) that in violation of their constitutional and statutory rights, the grand jury voir dire had been conducted, and the grand jury empaneled, by a United States Magistrate rather than a United States District Judge, and (2) that much of the evidence presented to the grand jury was hearsay and that body might not have been advised of its right to demand non-hearsay information. The court concluded that designation of magistrates to conduct grand jury proceedings was permissible; it reviewed the grand jury minutes and found no impropriety. Accordingly, both motions were denied.

Araya pleaded guilty four days before trial and testified as a government witness. The jury acquitted Diaz on count 1 and found him guilty on counts 2-6. It acquitted Guapacha on counts 5 and 6 and found him guilty on the other four counts. Defendants were sentenced as indicated above, and these appeals followed.

II. DISCUSSION

On appeal, defendants contend principally (1) that they are entitled to the dismissal of the indictment because (a) the selection and empaneling of the grand jury by a magistrate rather than by a judge violated their rights under the federal statute governing jury selection, and (b) the grand jury was not properly informed of the hearsay nature of the testimony before it; and (2) that the district court erred in not granting them a new trial on the basis of newly discovered evidence. In addition, Diaz contends that the government unfairly delayed in disclosing Brady material to him and that he was prejudiced by trial testimony involving a threat made by Guapacha. Finding no merit to any of defendants' contentions, we affirm the judgments of conviction.

A. Grand Jury Issues

1. Selection of the Grand Jury By a Magistrate

Jury selection in the federal courts is governed generally by the Jury Selection and Service Act, 28 U.S.C. Secs. 1861-1878 (1988) ("Jury Act"). Section 1865(a) provides, in pertinent part, that the determination of the qualifications of prospective jurors shall be made by "[t]he chief judge of the district court, or such other district court judge as the [district's jury selection] plan may provide...." 28 U.S.C. Sec. 1865(a). The terms of the Jury Act draw no distinction between potential petit jurors and potential grand jurors. Despite the apparent applicability of Sec. 1865(a), we reject defendant's challenge to grand jury selection by a magistrate rather than a district court judge because we conclude that the apparent limitation in the Jury Act is overridden by 28 U.S.C. Sec. 636(b)(1)(A), which is part of the Federal Magistrates Act, Pub.L. No. 90-578, 82 Stat. 1107 (1968) (codified as amended in scattered sections of the United States Code, including 28 U.S.C. Secs. 631-639 (1988)) (collectively "Magistrates Act").

The Magistrates Act authorizes district judges, in pertinent part, to delegate "any pretrial matter" to a federal magistrate, notwithstanding any apparently conflicting statute. Thus, Sec. 636(b)(1)(A) provides as follows:

(b)(1) Notwithstanding any provision of law to the contrary --

(A) a judge may designate a magistrate to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate's order is clearly erroneous or contrary to law.

28 U.S.C. Sec. 636(b)(1)(A) (emphasis added). The selection and empaneling of a grand jury are not among the tasks expressly excluded from this authorization, and they plainly occur prior to any part of the trial. On its face, therefore, Sec. 636(b)(1)(A) appears to authorize delegation of the pretrial functions of grand jury selection and empaneling to a magistrate.

Defendants contend that the Supreme Court's recent decision in Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989), requires the opposite conclusion. In Gomez, over the objection of the defendants, a magistrate had conducted the selection, voir dire, and preliminary instruction of a petit jury. The Supreme Court ruled that the designation of the magistrate to perform these functions was not authorized by the Magistrates Act. In reaching this conclusion, the Court viewed the selection of the petit jury as the first significant step...