U.S. v. Fiallo-Jacome, FIALLO-JACOM

• Decision Date: 08 June 1989
• Docket Number: No. 86-5862,D,FIALLO-JACOM,86-5862
• Citation: 874 F.2d 1479
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Johnefendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1479

874 F.2d 1479

UNITED STATES of America, Plaintiff-Appellee, v. John FIALLO-JACOME, Defendant-Appellant.

No. 86-5862.

United States Court of Appeals Eleventh Circuit.

June 8, 1989.

Milton M. Ferrell, Jr., Joseph Beeler, Miami, Fla., for defendant-appellant.

Dawn Bowen, Linda Collins Hertz, Dawn Bowen, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

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

Before RONEY, Chief Judge, VANCE, Circuit Judge, and KAUFMAN ^*, Senior District Judge.

FRANK A. KAUFMAN, Senior District Judge:

Appellant John Fiallo-Jacome, along with David King Brenner and Anthony Martinelli, was indicted in a nine-count indictment. Martinelli pled guilty; the trials of Brenner and Fiallo-Jacome were severed and Fiallo-Jacome's case was set for trial. During that trial, Brenner testified pursuant to a grant of use immunity. The jury found Fiallo-Jacome guilty upon six of the eight counts but not upon the two other counts. ¹ Subsequently, Brenner pled guilty and was sentenced to ten years of confinement, fined $15,000 and given a five-year special parole term. Fiallo-Jacome was sentenced by the same judge who had presided at his trial, accepted Brenner's guilty plea and sentenced Brenner. Fiallo-Jacome's total sentence was twenty-eight years of imprisonment, a special parole term of twenty years and a fine of $100,000.

In United States v. Fiallo-Jacome, 784 F.2d 1064 (11th Cir.1986), in which this Court considered appeals by Fiallo-Jacome and by Brenner, this Court held that the sentence imposed upon Fiallo-Jacome under the combination of Counts II and III violated double jeopardy principles and, accordingly, remanded to the district court for resentencing of Fiallo-Jacome. That double jeopardy contention constituted Fiallo-Jacome's "sole" argument upon his first appeal. Id. at 1066. As to Brenner, the "only one issue" raised by him in his appeal was "that his fifth amendment right against self-incrimination was violated when he was sentenced by the same district judge who heard his immunized, compelled testimony during Fiallo-Jacome's trial." Id. at 1067. In that regard, the Government confessed error under the Justice Department's internal guidelines. Accordingly, this Court remanded for resentencing of Brenner before a different judge. Subsequently, Brenner was resentenced by a different district judge to three years of confinement, and Fiallo-Jacome was resentenced by the same district judge who had tried and originally sentenced him, to a total of twenty-eight years of confinement, twenty years of special parole, and a $75,000 fine. ²

Fiallo-Jacome is represented in this appeal by new counsel who did not represent him in any proceeding in this case prior to this appeal. Most of the facts pertinent to this second appeal are set forth in the opinion of this Court upon the first appeal, and will not be repeated. However, our earlier opinion did not highlight certain uncontroverted facts or other "facts" alleged by Fiallo-Jacome in this second appeal. The reason for such lack of highlighting in our first opinion is that none of the contentions stated by Fiallo-Jacome in the within appeal was alluded to by him in the first appeal, although all of the factual predicates upon which each of such contentions rests were entirely or largely available in the combination of the records of the trial of Fiallo-Jacome and the proceedings in connection with the first sentencings of Fiallo-Jacome and Brenner. Accordingly, there is no reason known to this Court, other than the different approach of new counsel for Fiallo-Jacome, as to why each issue stated in this appeal could not have been raised the first time this case was before this Court. It is in that context that the Government questions the jurisdiction of this Court and, alternatively, raises the bar of waiver. In addition, the Government, on the merits, denies the existence of error at trial. The trial errors raised in this appeal by Fiallo-Jacome include the contention that the prosecutor purposely misled the trial judge, the jury and Fiallo-Jacome by concealing the existence of a de facto plea understanding between Brenner and the prosecutor under the guise of Brenner's lack of full cooperation with the Government and/or change of mind by Brenner and the need for use immunity to cause Brenner to testify; and that, accordingly, Fiallo-Jacome's opportunity fully to cross-examine Brenner was unlawfully limited. Other trial errors asserted in this appeal by Fiallo-Jacome are that his right to confront Brenner was further inappropriately restricted by rulings of the trial judge; that the trial judge also otherwise unfairly restricted defense counsel and made prejudicial comments about defense counsel's tactics in front of the jury; that the prosecutor's closing argument contained impermissible inflammatory reference to Fiallo-Jacome as a "plain dope pusher"; and that all such alleged errors, individually and totally, deprived Fiallo-Jacome of his right to a fair trial.

Jurisdiction and Waiver

28 U.S.C. Sec. 1291 provides that "[t]he courts of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts of the United States...." Fiallo-Jacome has, pursuant to Federal Appellate Rule of Procedure 4, timely noted his appeal from the judgment and the resentencing upon remand. Therefore, this Court has jurisdiction in this appeal, and the Government's contention to the contrary is without merit. But the Government's waiver argument is more persuasive. Fiallo-Jacome could have raised each contention which he has stated in this second appeal the first time round on appeal to this Court. He failed so to do. Perhaps, he did, in one way or another, state at trial the contentions he now advances in this appeal. To the extent he did not so do, it may be that Fiallo-Jacome did not have knowledge during his trial, and even during his own first sentencing, of all of the information which became available to him subsequently as the result of the first sentencing of Brenner. At that last-mentioned time, it was suggested by Brenner's counsel and the prosecutor that Brenner refused to testify against Fiallo-Jacome without compulsion because of his fear of what the latter's family might do to him and also that, in any event, the prosecutor preferred for tactical reasons to immunize Brenner rather than to make further attempts to enter into a plea agreement with him. But if pressure was in fact exerted upon Brenner by Fiallo-Jacome's family, Fiallo-Jacome may have known of the same during his trial. No factual inquiry in the district court in that regard is revealed by the record before us.

An appellant in a criminal case may not raise an issue for the first time in a reply appellate brief, United States v. Benz, 740 F.2d 903, 916 (11th Cir.1984), cert. denied, 474 U.S. 817, 106 S.Ct. 62, 88 L.Ed.2d 51 (1985), or for the first time in a petition for rehearing by an appellate court, United States v. Richards, 646 F.2d 962, 963 (5th Cir.1981). Furthermore, an appellant should raise all trial errors "in his appeal of the judgment and sentence." Parks v. United...