U.S. v. Esle, 82-5656

• Decision Date: 26 September 1984
• Docket Number: No. 82-5656,82-5656
• Citation: 743 F.2d 1465
• Parties: 16 Fed. R. Evid. Serv. 782 UNITED STATES of America, Plaintiff-Appellee, v. Ricardo R. ESLE, Roberto Diaz Gomez, a/k/a Robert Redruello, and Luis G. Arango, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1465

743 F.2d 1465

16 Fed. R. Evid. Serv. 782

UNITED STATES of America, Plaintiff-Appellee, v. Ricardo R. ESLE, Roberto Diaz Gomez, a/k/a Robert Redruello and Luis G. Arango, Defendants-Appellants.

No. 82-5656.

United States Court of Appeals Eleventh Circuit.

Sept. 26, 1984.

Blas E. Padrino, Coral Gables, Fla., for Esle.

Alan E. Weinstein, Miami Beach, Fla., for Arango.

Mark A. Levine, Joseph Beeler, Miami, Fla., for Gomez.

Stanley Marcus, U.S. Atty., Joseph R. Buchanan, Asst. U.S. Atty., Richard Kamp, Linda Collins Hertz, Michael Patrick Sullivan, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before TJOFLAT and CLARK, Circuit Judges, and GOLDBERG ^*, Senior Circuit Judge.

PER CURIAM:

In June 1980, Francisco Santoya, Ricardo Esle, Luis Arango, and Roberto Diaz-Gomez arranged to sell undercover Drug Enforcement Administration (DEA) agents approximately ten kilograms of cocaine. The agents arrested Santoya, Esle, and Arango at the delivery point; they arrested Diaz at his home shortly thereafter. The arrestees were indicted and charged, in two counts, with conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 846 (1982), and possession of cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)1 (1982) and 18 U.S.C. Sec. 2 (1982). Santoya pled guilty under a plea agreement. Esle was tried separately from and prior to Diaz and Arango. Esle and Arango were convicted on both counts. Diaz was convicted of the conspiracy count. All three defendants appeal. We affirm.

I.

In March 1980, DEA Agent Rubin Prieto, operating undercover, met appellant Santoya and attempted to arrange a cocaine buy through him. That attempt failed, but Prieto left a telephone number with Santoya in case Santoya could arrange a purchase.

Santoya called Prieto in June and informed him that he had a cocaine supplier willing to deal. Prieto and DEA Agent Zapata, posing as the buyer, met Santoya on June 10 in Miami. Santoya told them that he had set up a meeting for that afternoon in the Sheraton Hotel lounge between the two agents and another person, who would examine their money and deliver the cocaine.

Santoya and appellant Diaz, whom Santoya introduced as "Roberto," arrived at the lounge at 5:20 p.m. and met the agents. Diaz discussed price, quantity, quality and method of delivery of the cocaine with the agents. They reached a bargain and agreed that the delivery would take place that evening. Diaz departed the lounge to arrange for the delivery; the others remained behind. He returned at 8:40 p.m. to say that the transaction could not be consummated because of heavy rain. The parties rescheduled the transaction for the next day, June 11, at noon, at the same place.

On June 11, Santoya appeared, but Diaz did not. The agents, afraid of countersurveillance, indicated that they were going to check out of their motel and leave town. They said, however, that they would be willing to complete the cocaine buy on their way to the airport the next day, but at a different location, if Santoya could arrange it.

The next morning, the agents called Santoya and told him that they would be available at the Marriott Hotel at around noon. They then contacted DEA Agent Parrish to set up a surveillance of the hotel and its parking lot.

Santoya met Prieto and Zapata at the Marriott at about 12:45 p.m. Shortly thereafter, appellant Esle appeared, stating that he had two packages of cocaine to show and eight more that would be delivered if Prieto agreed. The cocaine, Esle indicated, was in a car at the parking lot. Esle went to get the cocaine. As he walked away, the agents noticed appellant Arango in front of the Marriott. Arango joined Esle, and they entered the parking lot. Prieto followed and saw Esle and Arango get into a blue Audi.

Agent Prieto caught up to them and asked what the trouble was and whether the packages were in the car. Esle responded that the cocaine was in the car. Arango indicated that he would not show Prieto even a gram of cocaine there because DEA agents were all around. Prieto asked him where they were, and Arango pointed out three surveillance vehicles. The two men told Prieto to get in the car and go elsewhere with them if he wanted to complete the transaction. When Prieto declined, Arango told Esle to leave. Esle began to start the car, and Prieto gave the signal for their arrest.

Agent Parrish and a Spanish speaking agent placed Esle and Arango under arrest. Agent Zapata, who had waited with Santoya in the hotel, arrested him. Esle and Arango denied ownership of the car. After looking inside the car and finding nothing, the agents opened the trunk of the car and found a briefcase. They later obtained a warrant to search the briefcase and found the cocaine; it was in a plastic bag contained within a brown paper bag. Arango's fingerprints were discovered on the brown paper bag. The agents also found the title certificate to the blue Audi; it bore Diaz' name. Diaz was arrested at his home several days later. On June 23, the four arrestees were indicted.

Prior to trial, the appellants moved the court to suppress the evidence derived from the warrantless search of the car trunk. After a hearing, the district court denied their motion, finding that exigent circumstances justified the search.

Appellants also moved the district court to dismiss the indictment because Hispanics were underrepresented in the grand jury venire (from which the grand jury that indicted appellants had been selected), in violation of the fair cross-section requirement of the sixth amendment to the Constitution. ¹ The court consolidated appellants' motion with similar motions in other criminal cases pending before the court and, after an evidentiary hearing, denied it because appellants failed to sustain their burden of proving the violation. ² United States v. Cabrera-Sarmiento, 533 F.Supp. 799 (S.D.Fla.1982). Appellants moved the court for reconsideration or, in the alternative, to reopen the evidence and order the U.S. Census Bureau to give them access to unreleased 1980 census data which, they alleged, would make out their sixth amendment claim. The court denied their motion summarily.

Arango thereafter moved the court to sever his case from that of Esle, contending that if they were tried separately Esle would testify for him. The court granted the motion and tried Esle alone, three weeks before Arango and Diaz. Before his trial with Arango began, Diaz moved the court for a severance of parties on the ground that his defense was irreconcilable with Arango's. The court denied his motion.

At Esle's trial, agents Zapata, Prieto, and Parrish testified to the occurrences described above. The parties stipulated that the substance the agents had uncovered in their search of the seized briefcase was cocaine. In his defense, Esle called a witness who testified that Esle had been in New York until late on the night before his arrest, implying that Esle could not have been a knowing participant in a cocaine transaction in Miami the following day. Esle did not take the stand. The jury convicted him.

At Diaz' and Arango's trial, the three agents again testified. Esle, also testifying for the prosecution, said that Diaz had lent him the car on the day of the arrests. Finally, two DEA agents and an FBI fingerprint expert established that Arango's fingerprints had been found on the brown bag containing the package of cocaine.

Diaz' defense was that he was not the "Roberto" who had met with the DEA agents at the Sheraton Hotel on June 10. He did not testify, but he produced witnesses who said that he had been at a doctor's office with his brother and then at home at the time the agents claimed to have spoken with him at the Sheraton Hotel. To counter the government's proof that he owned the blue Audi that had transported the cocaine to the Marriott Hotel parking lot, Diaz presented evidence that he had sold the automobile to Esle sometime earlier.

Arango's defense was that he was an innocent bystander. Taking the witness stand, he readily admitted that he had been in the blue Audi with Esle but insisted that he knew nothing about a drug deal. According to Arango, the two men were together because Esle wanted a job in Arango's gift shop, and they were on the way to lunch to discuss the job. The agents, he said, were lying when they testified that he said he would not show them any cocaine because the DEA had them under surveillance. Arango attempted to explain the presence of his fingerprints on the brown bag containing the cocaine by stating that the bag had come from the gift shop he ran.

In their closing arguments to the jury, both defendants attacked the credibility of the law enforcement officers. They suggested that, if the agents had been telling the truth, they would have corroborated their stories through "body bug" tape recordings of the transactions. The jury convicted the two men.

II.

In this consolidated appeal, appellants ask us to set aside their convictions, and to direct the district court to dismiss the indictment, on the ground that the grand jury that indicted them was drawn from a jury venire lacking sufficient numbers of Hispanics to satisfy the fair cross-section requirement of the sixth amendment. Alternatively, appellants seek a new trial. All contend that their trials were unduly prejudiced because the cocaine that gave rise to their indictment and convictions was inadmissible in evidence, having been seized by the DEA in violation of the fourth amendment. Diaz and Arango present additional reasons for a new trial. Diaz contends that the district court should have severed his trial from Arango's, because their defenses were antagonistic, and that the court's failure to do so denied him a fair trial. Arango contends that prosecutorial misconduct rendered his trial unfair....