U.S. v. Fernandez, s. 94-4021

• Decision Date: 17 March 1998
• Docket Number: Nos. 94-4021,96-4878,s. 94-4021
• Citation: 136 F.3d 1434
• Parties: 11 Fla. L. Weekly Fed. C 1137 UNITED STATES of America, Plaintiff-Appellee, v. Jose FERNANDEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1434

136 F.3d 1434

11 Fla. L. Weekly Fed. C 1137

UNITED STATES of America, Plaintiff-Appellee, v. Jose FERNANDEZ, Defendant-Appellant.

Nos. 94-4021, 96-4878.

United States Court of Appeals Eleventh Circuit.

March 17, 1998.

G. Richard Strafer, Quinon & Strafer, P.A., Miami, FL, for Defendant-Appellant.

William A. Keefer, U.S. Atty., Philip DiRosa, Linda Collins Hertz, Mary Virginia King

and Adalberto Jordan, Asst. U.S. Attys., Miami, FL, for Plaintiff-Appellee.

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

Before ANDERSON and BIRCH, Circuit Judges, and WOODS ^*, Senior District Judge.

BIRCH, Circuit Judge:

In this consolidated appeal, Jose Fernandez, a former Miami-Dade police officer, challenges his conviction for conspiracy to import and distribute cocaine, 21 U.S.C. §§ 963 and 846, as well as the district court's denial of his motion for a new trial. For the reasons that follow, we vacate the district court's order denying Fernandez' request for a new trial and remand this case for an evidentiary hearing. In remanding this case, we specifically direct the district court to explore the merits of Fernandez' claims that the government withheld material, exculpatory evidence in violation of the principles enunciated in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and that newly-discovered evidence requires that he receive a new trial. We deem all remaining contentions raised in these appeals to be without merit.

I. BACKGROUND

Viewing the facts in the light most favorable to the government, United States v. Keller, 916 F.2d 628, 632 (11th Cir.1990), we find the following circumstances underlying Fernandez' case to be undisputed: Enrique Zamorano became involved in the drug trade in 1984 while working as a baggage handler at Miami International Airport. Initially, Zamorano unloaded small quantities of cocaine from airplanes originating in Colombia. In 1987, Zamorano and his Colombian associates sought to expand their business by bringing larger quantities of cocaine into the cargo facilities in Miami. At first, Zamorano transported cocaine on cargo flights from both Haiti and Venezuela into Miami. The cocaine was supplied by a Colombian distributor, Florentino Fernandez. During these years, Zamorano also participated in several business enterprises created to launder the proceeds from cocaine shipments. Zamorano's United States-based operations gradually grew to include, among other individuals, Orlando Fernandez, Hector Aguilar, and Jean Francois.

It is beyond dispute that multiple massive shipments of cocaine successfully entered the United States through Zamorano's organization. The particular shipment at issue in this case, however, implicates the following events: In 1991, a joint task force comprised of United States Customs ("Customs") agents and agents of the Drug Enforcement Administration ("DEA") were acting in cooperation with the Venezuelan National Guard ("VNG") to effect controlled deliveries of cocaine from Caracas, Venezuela, into Miami. The DEA also had an office in Caracas that was actively involved in this joint effort. The DEA and VNG both used an informant, denominated "Cristobal" or "Cristo" [hereinafter Cristo], who acted as a broker between Zamorano and Florentino Fernandez. Cristo was controlled primarily by General Ramon Guillen Davila ("General Guillen") of the VNG; the only contact the DEA was able to have with Cristo was communicated through General Guillen.

In 1989, Zamorano established an airline, Aerolinas Latinas, to transport cargo from Venezuela into the United States. Although the airline originally functioned as a legitimate enterprise, Zamorano decided in 1990 to use the airline to smuggle cocaine into Miami's airport. In October 1990, Zamorano had a large crate built in the United States and flown to Caracas filled with automobile parts. After the plane's arrival in Venezuela, however, the VNG destroyed this crate. Zamorano had a second crate built; in this instance, he sent specifications for the crate to Cristo, who had the crate constructed and delivered to the VNG. At the same time, Cristo conveyed to the VNG approximately 1,200 kilograms of cocaine that had been shipped to Zamorano--through Cristo--by Florentino Fernandez. The VNG and DEA agreed to make a controlled delivery of this cocaine. In early November 1990, however, the VNG attempted to transport the cocaine on Aerolinas Latinas without the DEA's knowledge or participation. The VNG's attempt was unsuccessful because the crate did not fit through the plane's cargo door.

Zamorano next devised another strategy to transport the cocaine from Venezuela to Miami: he used cargo pallets, normally not subject to Customs' inspection, to store the cocaine. Specifically, Zamorano's plan involved using stacks of pallets that had been hollowed out, placing small crates of cocaine into the hollowed areas, stacking the crates between uncut pallets, and banding them together. Several of Zamorano's associates, including Cristo, helped to orchestrate Zamorano's plan. On November 8, 1990, the first shipment containing approximately 410 kilograms of cocaine was successfully shipped into Miami undetected by law enforcement.

One week later, Zamorano attempted a second shipment by this method. In this instance, the VNG made the DEA aware of the intended shipment and the two agencies again planned a controlled delivery into Miami. The VNG loaded the cocaine into the plane and indicated on a tally sheet provided to the DEA that it had transported approximately 602 kilograms of cocaine in this shipment; it is undisputed, however, that U.S. law enforcement personnel seized only 400 kilograms of cocaine after this shipment arrived in the United States.

Orlando Fernandez, Jean Francois, Hector Aguilar, and Zamorano all testified as part of the government's case at Fernandez' trial. Each co-conspirator's testimony supported the government's allegation that Fernandez had "tipped off" Zamorano by informing him that the November 16 shipment was under surveillance. Orlando Fernandez, Fernandez' cousin, testified that Fernandez had expressed interest in becoming chief of security at Zamorano's airline and had provided Zamorano on many occasions with information regarding whether drug shipments were "safe" to retrieve at the airport. Jean Francois, Hector Aguilar, and Zamorano all testified that, immediately prior to the November 16th shipment's arrival in Miami, Fernandez attempted to contact Zamorano to inform him that the delivery would be under surveillance by law enforcement. Each of the co-conspirators further testified that Fernandez (1) met with Zamorano on November 17th and pointed out to him U.S. Customs' surveillance vehicles at the Miami airport; (2) met with Zamorano, Orlando Fernandez, and others later that evening and helped the conspirators to devise a way to "unload" the cocaine by delivering the shipment to Customs agents; (3) had an informant associated with Customs in Puerto Rico who regularly provided him with information regarding planned surveillance of cargo planes into Miami; and (4) periodically received payments from Zamorano for his assistance. In addition, the government presented at trial several taped conversations between Fernandez and Orlando Fernandez. Although the contents of these conversations implicated Fernandez with respect to his involvement in Zamorano's organization, Fernandez made no conclusive admission of his own complicity.

Fernandez' defense at trial, reduced to its simplest terms, was that he was "in the wrong place at the wrong time" and that there were other more likely "tipsters" who may have informed Zamorano that federal law enforcement officers were aware of the November 16th drug shipment. Several DEA agents testified regarding the machinations of the conspiracy in its entirety; in each case, Fernandez attempted to elicit testimony from the agents that either General Guillen, a suspected corrupt official, or Cristo, a known informant, could have "tipped" the shipment. DEA agents also testified that, when Fernandez was arrested, he stated that he was "nowhere near the top" of Zamorano's organization. Fernandez attempted to show, through cross-examination, that this statement was intended to be sarcastic. Fernandez also presented to the jury evidence contained in a DEA report indicating that Orlando Fernandez had told the DEA that Cristo had been the tipster. Fernandez testified on his own behalf and admitted that he had met...