U.S. v. Franco, 99-2194.

• Decision Date: 11 April 2007
• Docket Number: No. 99-2194.,99-2194.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ernesto FRANCO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

484 F.3d 347

UNITED STATES of America, Plaintiff-Appellee, v. Ernesto FRANCO, Defendant-Appellant.

No. 99-2194.

United States Court of Appeals, Sixth Circuit.

Argued: January 30, 2007.

Decided and Filed: April 11, 2007.

[484 F.3d 348]

ARGUED: Margaret Amer Robey, Robey & Robey, Cleveland, Ohio, for Appellant. John C. Engstrom, Assistant United states Attorney, Detroit, Michigan, for Appellee. ON BRIEF: Margaret Amer Robey, Gregory S. Robey, Robey & Robey, Cleveland, Ohio, for Appellant. John C. Engstrom, Assistant United States Attorney, Detroit, Michigan, for Appellee.

Before MARTIN, BATCHELDER, and McKEAGUE, Circuit Judges.

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

Defendant Ernesto Franco was convicted and sentenced for possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). On appeal, he challenges the district court's admission of "other acts" evidence introduced by the government to rebut his entrapment defense, as well as the district court's restriction of his cross-examination of a government witness. In addition, he claims that he received ineffective assistance of counsel based on two alleged errors by trial counsel. Franco also argues that his conviction and sentence must be reversed because (1) there was insufficient evidence to support a finding that he possessed with intent to distribute nine kilograms of cocaine, and (2) the jury did not determine the type and quantity of drugs he was found to possess with intent to distribute. Finally, he requests that he be resentenced pursuant to the Supreme Court's decision in United States v. Booker. For the reasons below, we AFFIRM Franco's conviction, but VACATE his sentence and REMAND for the limited purpose of resentencing in light of Booker.

I

The events leading up to this case began in December 1994 when Julio Molineiro, a paid U.S. Customs informant in Texas, contacted Ronald Ramon, his supervising agent. Molineiro informed Agent Ramon that an acquaintance, Miguel Sanchez, had information that Ernesto Franco was interested in purchasing drugs. Shortly thereafter, agents from the Drug Enforcement Agency (DEA) and U.S. Customs Service interviewed Sanchez and Molineiro.

The investigating agents initiated a reverse sting operation.¹ Sanchez was instructed to call Franco and inform him that he was in Cincinnati with 30 kilograms of cocaine for sale. During a recorded phone conversation on January 10, 1995, Franco expressed interest in purchasing the cocaine and asked Sanchez to call him when he arrived in Detroit. Sanchez called from Detroit the following day, and over the next few days negotiations ensued and events unfolded according to plan. After meeting with Sanchez, Franco was introduced to Molineiro, who acted as the Bolivian owner of the cocaine, and Special Agent Albert Ornelas, who acted as Molineiro's associate and bodyguard. The parties scheduled a cocaine delivery to occur on January 13, 1995 in a room at the Taylor Inn. Officers set up surveillance beforehand in the room next door. However, after Franco arrived at the scene but prior to entering the hotel, he turned around and left. The next day, Franco called Molineiro and informed him that the reason he aborted the sale was because he observed someone he believed to be a police officer looking out the window of the adjacent room.

One month later, on his own initiative, Franco telephoned Molineiro and suggested that they meet in Michigan without Sanchez. During a videotaped meeting on February 22, 1995, Franco discussed his reasons for not carrying out the January 13 buy, noting that he had worked in the drug business for over twenty years and believed that the police were on to him. Franco and Molineiro recommenced negotiations and agreed on a series of smaller deliveries of approximately 10 kilograms each. They scheduled the first delivery for March 23, 1995.

On March 23, federal agents set up surveillance at the Hometown Inn in Detroit. Franco arrived at a room occupied by Molineiro and Ornelas and was presented with a duffel bag containing one kilogram of real cocaine and eight kilograms of sham cocaine. Franco cut into the real kilogram of cocaine, put some to his face, and stated it was good. He advised Molineiro and Ornelas that he had to go home to retrieve the $40,000 payment for the drugs. Thirty minutes later, he returned with a box containing an amount just shy of the $40,000. He stated that he was going to transport the cocaine to a safe place and return with the remaining balance. As Franco left the hotel with the duffel bag in his possession, he was arrested.

On December 21, 1995, Franco was indicted on one count of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). On November 17, 1998, the government filed a superseding indictment containing identical allegations.

On May 28, 1999, following a four-day trial, a jury returned a guilty verdict. Franco was assigned a criminal history category of I (based on zero criminal history points) and a total offense level of 32, resulting in a Guidelines sentence range of 121 to 151 months. Because Franco was sentenced pre-Booker, the district court had no discretion to sentence Franco outside the applicable Guidelines range, and sentenced him to 136 months' imprisonment.

Franco appealed and briefs were submitted by both parties in April and May 2000. However, we dismissed his appeal on June 16, 2000 because Franco failed to file a joint appendix. His motion to reinstate was denied on March 15, 2001. On February 4, 2003, Franco filed a motion for post-conviction relief pursuant to 28 U.S.C. § 2255 in the district court. Although this motion was untimely, the district court equitably tolled the statute of limitations and addressed the merits of his case. Franco argued that his trial counsel was ineffective for failing to demand that the jury decide the quantity of drugs involved in Franco's offense. On January 27, 2004, the district court denied his petition, finding that counsel was not ineffective because Franco was convicted and sentenced prior to the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (holding that "other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt"). Franco did not appeal.

On July 14, 2005, Franco renewed his motion to open his underlying appeal, which we granted on November 15, 2005. His case comes before us in a unique procedural posture: Franco was convicted and sentenced before the Supreme Court's 2000 decision in Apprendi, but his case is on direct appeal after its 2005 decision in Booker, despite his having already brought a habeas petition before the district court.

II

Franco challenges the trial court's decision to allow Ornelas² and Molineiro to testify regarding Franco's involvement in prior drug trafficking crimes without first weighing the evidence under Fed.R.Evid. 403.³ We review the district court's evidentiary ruling for abuse of discretion. United States v. Chambers, 441 F.3d 438, 455 (6th Cir.2006). "Broad discretion is given to district courts in determinations of admissibility based on considerations of relevance and prejudice, and those decisions will not be lightly overruled." Id. (quoting United States v. Dixon, 413 F.3d 540, 544 (6th Cir.2005)).

In 1997 (prior to the issuance of the superseding indictment), Franco filed a motion for discovery regarding any evidence the government would use to rebut his entrapment defense. Franco anticipated that this evidence would fall under Fed. R.Evid. 404(b), which provides that:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

See also United States v. Blankenship, 775 F.2d 735, 739 (6th Cir.1985) (noting that countering an entrapment defense with evidence of other crimes and wrongs in order to show criminal predisposition "is a permissible use of such evidence not explicitly referred to in Rule 404(b), but generally recognized"). Although Franco conceded that this evidence was admissible, he argued that the government did not comply with Rule 404(b)'s notice requirement. Although the government did not believe it was required to provide notice regarding such discovery, "out of an abundance of caution," it sent a letter outlining some of the information Franco requested. The content of this letter, which is unknown to us, apparently did not appease Franco. At a pretrial hearing, the district court denied Franco's motion, but noted that it would make a final determination at trial. Ultimately, this evidence was admitted at trial.

Franco still contends that this evidence falls under Rule 404(b), although the government maintains because this evidence was used for the purpose of showing conformity with his criminal character, it falls under Rule 404(a),⁴ which provides, in pertinent part:

Character evidence generally. — Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(1) Character of accused. — In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same . . .

Notably, Rule 404(a) does not require the government to provide pretrial notice of the...