U.S. v. Fernandez

• Decision Date: 26 August 1986
• Docket Number: No. 85-5311,85-5311
• Citation: 797 F.2d 943
• Parties: 21 Fed. R. Evid. Serv. 557 UNITED STATES of America, Plaintiff-Appellee, v. Fernando FERNANDEZ, Rafael Enrique Franjul, a/k/a Frank Sinatra, Defendants- Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 943

797 F.2d 943

21 Fed. R. Evid. Serv. 557

UNITED STATES of America, Plaintiff-Appellee, v. Fernando FERNANDEZ, Rafael Enrique Franjul, a/k/a Frank Sinatra, Defendants- Appellants.

No. 85-5311.

United States Court of Appeals Eleventh Circuit.

Aug. 26, 1986.

Roy E. Black, Black & Furci, P.A., Frank C. Furci, Miami, Fla., for fernandez.

Ronald A. Dion, Entin, Schwartz, Dion & Scalfani, Jonathan B. Blecher, North Miami Beach, Fla., for Franjul.

Leon Kellner, U.S. Atty., Barbara Petras, Asst. U.S. Atty., Miami, Fla., for plaintiff-appellee.

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

Before RONEY and CLARK, Circuit Judges, and GIBSON ^*, Senior Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge:

The appellants, Fernando Fernandez and Rafael Franjul, challenge their convictions under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Sec. 1961 et seq, and under the federal statutes prohibiting conspiracies to import marijuana and to possess marijuana with the intent to distribute, 21 U.S.C. Secs. 952, 963, 841, 846. For the reasons discussed below, we affirm the RICO convictions and Franjul's marijuana conspiracy convictions, but reverse Fernandez' marijuana conspiracy convictions.

A federal grand jury returned a multicount indictment charging several individuals, including the appellants, with racketeering and other related crimes as a result of their association with and participation in an illegal narcotics enterprise. Fernando Fernandez was charged in Count I with conspiracy to violate RICO, in Count II with a substantive violation of RICO, in Count IV with conspiracy to import marijuana, and in Count V with conspiracy to possess marijuana with intent to distribute. As RICO predicate acts for both the RICO conspiracy and the substantive violation, Fernandez was charged with conspiracy to kidnap Rogelio, a man believed by Fernandez to have stolen the enterprise's marijuana; conspiracy to murder Rogelio; and, as one predicate act, the marijuana conspiracies charged in Counts IV and V. ¹ Rafael Franjul was charged in Count I with conspiracy to violate RICO and in Counts IV and V with conspiracy to import marijuana and conspiracy to possess marijuana with the intent to distribute. As predicate acts for the RICO conspiracy, Franjul was charged with conspiracy to kidnap Moises Perez, a man believed by Franjul to be a government informant; conspiracy to murder Perez; and, as one predicate act, the marijuana conspiracies charged in Counts IV and V.

I. COCONSPIRATOR STATEMENTS

Both Fernandez and Franjul contend that the district court erred in failing to make separate James determinations as to each conspiracy charged. We address this issue as a preliminary matter so that we can properly review the evidence against them.

In United States v. James, 590 F.2d 575, 581 (5th Cir.) (en banc), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979), the court held that coconspirator statements introduced pursuant to Fed.R.Evid. 801(d)(2)(E) are not properly admitted until, as a preliminary matter, the government shows substantial independent evidence of a conspiracy. More specifically, the substantial independent evidence must show that (1) a conspiracy existed, (2) the declarant and the defendant were members of the conspiracy, and (3) the statements were made in furtherance of the conspiracy. Id. See Fed.R.Evid. 801(d)(2)(E). The district court has discretion to admit the statements subject to proof of these three requirements during the course of the trial. United States v. Hewes, 729 F.2d 1302, 1312 (11th Cir.1984), cert. denied, Caldwell v. U.S. 469 U.S. 1110, 105 S.Ct. 790, 83 L.Ed.2d 783 (1985).

The district court reserved ruling until the close of the government's case, at which time it determined that the government had satisfied the James standard as to the RICO conspiracy (Count I). The district court again reserved ruling on the admissibility of coconspirator statements as to the separately charged marijuana conspiracies (Counts IV and V), but indicated a belief in the government's argument that all coconspirator statements were admissible as to all counts since the James standard had been satisfied as to the RICO conspiracy. At the conclusion of the evidence, the defendants renewed all outstanding motions. The district court did not determine whether the James standard had been satisfied as to Counts IV and V. Fernandez and Franjul contend that the district court erred in this respect. They argue that in the absence of a James determination the coconspirator statements regarding the separately charged marijuana conspiracies should not have been admitted as evidence against them on Counts IV and V.

Failure to make a specific James determination is harmless error if the record demonstrates admissibility. United States v. Monaco, 702 F.2d 860, 878 (11th Cir.1983); United States v. Bulman, 667 F.2d 1374, 1380 (11th Cir.), cert. denied, 456 U.S. 1010, 102 S.Ct. 2305, 73 L.Ed.2d 1307 (1982). After reviewing the record, we conclude that the record does not demonstrate admissibility of the coconspirator statements against Fernandez on the separately charged conspiracies to import marijuana and possess marijuana with the intent to distribute as alleged in Counts IV and V. We hold that the independent evidence does not establish the existence of these conspiracies, the first James requirement. We hold, however, that the record demonstrates admissibility of the coconspirator statements against Franjul on the separately charged marijuana conspiracies.

The government acknowledged during oral argument that the only evidence that Fernandez conspired to import marijuana was the following portion of his conversation with Cheo on November 5, 1983:

CHEO: ² I asked for you to come ... do you know anything about a plane, a DC-6 something like that, that can be obtained somewhere, to drop it over there. (whispering) (UI) [unintelligible] the farm....

FERNANDEZ: A DC-6? Damn, that's a big plane.

CHEO: A DC-6, yes, a DC-3.

FERNANDEZ: A DC-3 is also big.

CHEO: (UI)

FERNANDEZ: 6,000 pounds, 4,000 something.

CHEO: No, 4,500 not 6,000, so it won't fall.

FERNANDEZ: Well, you know that I don't have any connections with that.

CHEO: I have, I have ...

FERNANDEZ: I know a pilot.

....

CHEO: .... I need, I was looking for, to see if I get a small plane.

FERNANDEZ: Now, I know a pilot who's very bold, he's a good sort, Luis ... "El Chino Luis", but that I know, well, unless he has some contacts with somebody.

CHEO: One thing I was going to tell you, Fernando [Fernandez] (UI).

Appendix to Appellant's Brief at 26-28. Even when considering the coconspirator statements here, we cannot say that this discussion amounted to an agreement to import marijuana. Merely providing Cheo with the name of a pilot in response to Cheo's inquiry about a plane that was capable of transporting a hypothetical load of marijuana does not constitute an agreement.

The government also acknowledged during oral argument that the references to marijuana ventures were the only evidence that Fernandez conspired to possess marijuana with the intent to distribute. The vague discussions of past marijuana ventures cannot be considered evidence upon which a conviction for conspiracy to possess marijuana may be upheld.

The independent evidence does not demonstrate the existence of conspiracies in this case. Therefore, the coconspirator statements concerning the marijuana conspiracies should not have been admitted against Fernandez as evidence on Counts IV and V. Although inadmissible as to Counts IV and V, these coconspirator statements are admissible as to the RICO conspiracy. The RICO conspiracy is a broad concept and encompasses a great variety of conduct. United States v. Pepe, 747 F.2d 632, 659 (11th Cir.1984). It is not disputed that the purpose of the enterprise involved in this case was to import and distribute marijuana. The coconspirator statements concerning the alleged marijuana conspiracies show Fernandez' previous and continuing relationship to the enterprise, and therefore are admissible to that extent.

Fernandez also argues that the government failed to prove that he agreed to commit the kidnapping and murder of Rogelio. We disagree. As discussed in more detail in Part III of our opinion, the independent evidence demonstrates the existence of these conspiracies.

With respect to Franjul, we hold that the record demonstrates admissibility of the coconspirator statements against him as to the separately charged marijuana conspiracies alleged in Counts IV and V. Franjul's own statements supply the requisite independent evidence of the existence of the agreements to import and to possess marijuana with the intent to distribute. See United States v. Zielie, 734 F.2d 1447, 1457 (11th Cir.1984) ("a defendant's own statements constitute independent evidence for purpose of applying the James standards"), cert. denied, --- U.S. ----, 105 S.Ct. 957, 83 L.Ed.2d 964 (1985). During his conversation with Cheo on November 19, 1983, Franjul demonstrated his association with Cheo and the enterprise. Franjul revealed his thorough knowledge of specific dates and times of various shipments of marijuana, as well as his knowledge of the people involved in those shipments. He also revealed his participation in one particular shipment. Franjul stated that he had posted bond for the employees who were arrested while attempting to import several thousand pounds of marijuana. More importantly, Franjul revealed the conspiracy to import marijuana. He reported to Cheo: "I ... I'm planning to go with one of those small airplanes, nine thousand, nine thousand, nine thousand." Appendix to Appellant's Brief at 1. Franjul admitted during cross-examination that he was referring to the transportation of nine thousand pounds of marijuana by plane. Record XXIX at 164. Franjul was reporting...