U.S. v. Gessa

• Decision Date: 07 August 1992
• Docket Number: Nos. 90-5825,90-5903,s. 90-5825
• Citation: 971 F.2d 1257
• Parties: 36 Fed. R. Evid. Serv. 450 UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Alberto GESSA, Defendant-Appellant, Cross-Appellee. . Re
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1257

971 F.2d 1257

36 Fed. R. Evid. Serv. 450

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Alberto GESSA, Defendant-Appellant, Cross-Appellee.

Nos. 90-5825, 90-5903.

United States Court of Appeals Sixth Circuit.

Reargued Feb. 12, 1992.

Decided Aug. 7, 1992.

H.H. Hester, Asst. U.S. Atty. (briefed), Ernest W. Williams, U.S. Atty., Office of the U.S. Atty., Nashville, Tenn., Sean Connelly (argued and briefed), U.S. Dept. of Justice, Civil Div., Washington, D.C., for U.S.

Charles R. Ray (argued and briefed), Bryan & Marett, Nashville, Tenn., for Gessa.

Before: MERRITT, Chief Judge; KEITH, KENNEDY, MARTIN, JONES, MILBURN, GUY, NELSON, RYAN, BOGGS, NORRIS, SUHRHEINRICH, SILER, and BATCHELDER, Circuit Judges; and CONTIE and KRUPANSKY, Senior Circuit Judges.

CONTIE, Senior Circuit Judge.

Defendant-appellant, Alberto Gessa, appeals his conviction and sentence for conspiracy to distribute and possess with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and for distribution of cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The United States cross-appeals from the district court's alleged misapplication of the United States Sentencing Guidelines (U.S.S.G.).

I.

In February 1989, defendant, Alberto Gessa, was charged on two counts of a twenty-three count, nineteen-defendant indictment, alleging conspiracy to distribute and distribution of cocaine in the Middle District of Tennessee in or about the spring and summer of 1988. All of defendant's co-defendants either pled guilty or were tried and convicted in May and June of 1989 under a different prosecutor. Defendant was not tried at the same time because he had become a fugitive and was not apprehended until September 1989.

During defendant's trial in February 1990, it was established that his brother, Alex Gessa, was the ringleader in a drug trafficking ring that transported cocaine from Florida to Tennessee and that his main couriers included defendant, Sergio Alarcon, Manuel Perez, Louis Garcia, and Juan Perez. The bookkeeper of the drug organization was Camille Kohler, Alex Gessa's former girlfriend, who testified against all of the co-defendants on behalf of the government.

In her debriefing for the first trial, Camille Kohler had told the prosecutor that there existed a scheme to import 2500 kilograms of cocaine from Colombia by air dropping the cocaine in the ocean and picking it up by boat, but the prosecutor in the first trial did not believe there was sufficient evidence of a foreign importation scheme and did not introduce any evidence about it against defendant Gessa's co-defendants.

The prosecutor in defendant's trial decided to introduce evidence of a 2500 kilogram importation scheme against defendant because it found two witnesses, Jesus Fleitas and Eli Palmer, who agreed to testify that on two prior occasions, defendant had used a boat to import cocaine into Florida from Green Turtle Cay in the Grand Bahamas.

At defendant's trial, Camille Kohler testified that a 2500 kilogram importation scheme existed, but three other witnesses, Alex Gessa, Sergio Alarcon and Barbara Alarcon, stated that the alleged scheme was a ruse developed to deceive Camille Kohler about the real reason her boyfriend, Alex Gessa, was in Florida, which was to see another girlfriend, Laurie Becak. Testimony from Kohler and others disclosed that during the time period between the late spring and November of 1988, the organization of Alex Gessa had obtained approximately 2.5 to 3 kilograms of cocaine from defendant for distribution in the Middle District of Tennessee. On February 13, 1990, defendant was convicted as charged on one substantive count and one conspiracy count.

A final sentencing hearing was held on June 11, 1990. The district court stated that it believed a 2500 kilogram foreign importation conspiracy had been established by a preponderance of the evidence. The court credited Camille Kohler's testimony over that of the other co-conspirators that there existed a definite scheme, which was not a ruse, to obtain 2500 kilograms of cocaine from Colombia by air drop and boat lift. The district court also credited Kohler's testimony that she had wired large amounts of money from Tennessee to Alex Gessa, defendant's brother, who was in Ft. Lauderdale, and had arranged for the transportation of Alex Gessa's boat from Nashville to Florida. The district court, on the other hand, indicated that the scheme was too vague and tenuous to use for sentencing purposes. The court also objected to sentences based merely on "conversational cocaine" when the transaction that was the object of the conspiracy had never been completed. The district court rejected the recommendation in defendant's pre-sentence report that his base offense level include the 2500 kilogram amount, and instead sentenced defendant on the basis of 2.5 to 3 kilograms of cocaine. ¹ The base offense level for 2.5 to 3 kilograms at the time defendant was sentenced was 28. The district court added two points for obstruction of justice, which coupled with a criminal history category of I, resulted in a sentencing range from 97 to 121 months of incarceration. Without explaining its reasons for doing so, the district court departed downward by one month from the applicable Guideline range and sentenced defendant to 96 months in prison to be followed by four years supervised release. The court also imposed a $55,000 fine and a $100 special assessment.

Defendant timely appealed his conviction and sentence. The United States cross-appealed from the district court's alleged misapplication of the United States Sentencing Guidelines.

This matter is now before this court in an en banc proceeding.

II.

Defendant objected to the admission of the testimony of Camille Kohler and other co-defendants, arguing that their statements about what Alex Gessa had told them were narrative declarations and not in furtherance of the conspiracy.

The district court overruled defendant's objections pursuant to Fed.R.Evid. 801(d)(2)(E). ² Although it is often stated that we apply an abuse of discretion standard to a district court's evidentiary rulings, ³ we believe this statement sweeps too broadly in regard to Rule 801(d)(2)(E) which requires that specific factual determinations and legal conclusions be made in order for the evidence to be admitted. In order to admit the statement of a co-conspirator under Fed.R.Evid. 801(d)(2)(E), it must first be determined that the conspiracy existed, that the defendant was a member of the conspiracy, and that the co-conspirator's statements were made "in furtherance of the conspiracy." United States v. Vinson, 606 F.2d 149, 152 (6th Cir.1979), cert. denied, 444 U.S. 1074, 100 S.Ct. 1020, 62 L.Ed.2d 756 (1980). These are factual determinations governed by the clearly erroneous standard of review. See Mahoney v. United States, 831 F.2d 641, 645 (6th Cir.1987), cert. denied, 486 U.S. 1054, 108 S.Ct. 2820, 100 L.Ed.2d 922 (1988).

In the present case, the district court's determinations that the government had proven the existence of a conspiracy by a preponderance of the evidence, that defendant was a member of the conspiracy, and that the statements, which Alex Gessa had made to others attributing 2.5 to 3 kilos to defendant, were made in "furtherance of the conspiracy" are not clearly erroneous. United States v. Rios, 842 F.2d 868, 874 (6th Cir.1988) (statements of a co-conspirator which identify another co-conspirator as the source of drugs involved in the conspiracy are in furtherance of the conspiracy), cert. denied, 488 U.S. 1031, 109 S.Ct. 840, 102 L.Ed.2d 972 (1989). Based on these factual determinations, the district court concluded that Rule 801(d)(2)(E) permitted the "otherwise hearsay" co-conspirators' statements to be received as "not hearsay." This is a question of law, which we review de novo. United States v. Blakeney, 942 F.2d 1001, 1020 (6th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 646, 116 L.Ed.2d 663 (1991); United States v. Levy, 904 F.2d 1026, 1029 (6th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 974, 112 L.Ed.2d 1060 (1991). In the present case, we find the district court made the proper legal determination and admitted the co-conspirators' statements as not hearsay.

Defendant also objected to the admission of the testimony of witness Fleitas, who testified that he had accompanied defendant to Green Turtle Cay to obtain an unknown quantity of cocaine on two occasions prior to the inception of the 2500 kilogram conspiracy, and to the testimony of witness Palmer, who testified that he had accompanied defendant on one smuggling expedition to Green Turtle Cay to obtain 250 kilograms of cocaine. Defendant argued that the admission of this evidence violated Fed.R.Evid. 404(b) because it was unduly prejudicial evidence of prior bad acts. ⁴

The district court admitted the testimony under the exception to Fed.R.Evid. 404(b), which allows "[e]vidence of other crimes, wrongs, or acts" if it is probative of "intent, preparation, [or] plan." Although this court has frequently stated that we review 404(b) evidence under an abuse of discretion standard, United States v. Loehr, 966 F.2d 201 (6th Cir.1992); United States v. Wrice, 954 F.2d 406, 411 (6th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 2286, 119 L.Ed.2d 211 (1992); United States v. Daniels, 948 F.2d 1033, 1035 (6th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1279, 117 L.Ed.2d 504 (1992); United States v. Paulino, 935 F.2d 739, 754 (6th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 315, 116 L.Ed.2d 257 (1991), we believe it is more precise to state the following. First, it must be determined as a matter of preliminary fact whether there is sufficient evidence that the prior act occurred. Second, a legal determination must be made whether the "other act" allegedly committed by the defendant was admissible as evidence of "intent, preparation, [or] plan....