U.S. v. Giry, 86-1487

• Decision Date: 26 May 1987
• Docket Number: No. 86-1487,86-1487
• Citation: 818 F.2d 120
• Parties: UNITED STATES of America, Appellee, v. Pierre Michel Henri GIRY and Steven Seward, Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 120

818 F.2d 120

UNITED STATES of America, Appellee, v. Pierre Michel Henri GIRY and Steven Seward, Defendants, Appellants.

No. 86-1487.

United States Court of Appeals First Circuit.

Argued March 3, 1987.

Decided May 13, 1987.

As Amended May 26, 1987.

James W. Lawson with whom Lillian A. Wilmore and Oteri, Weinberg and Lawson, Boston, Mass., were on brief, for appellants.

Jose A. Quiles, Asst. U.S. Atty., with whom Daniel F. Lopez Romo, U.S. Atty., Hato Rey, P.R., was on brief, for appellee.

Before COFFIN and TORRUELLA, Circuit Judges, and PETTINE, ^* Senior District Judge.

PETTINE, Senior District Judge.

This is an appeal from convictions of conspiracy to import cocaine into the United States. The appellants, Pierre Giry ("Giry") and Steven Seward ("Seward") were indicted by a federal grand jury in the District of Puerto Rico on one count of conspiracy to import approximately 135 kilograms of cocaine into the United States, in violation of 21 U.S.C. sections 952 and 963. Giry was also indicted on two counts of using communication facilities to effectuate the conspiracy, in violation of 21 U.S.C. section 843(b). Following a four-day trial in February, 1986 a jury returned verdicts of guilty on all counts charged. On April 30, 1986 Giry was sentenced to serve a total of 28 years in prison and to pay a $250,000 fine, and Seward was sentenced to serve 10 years in prison and to pay a $20,000 fine.

The appeal from these verdicts and sentences raises four issues: whether the evidence was sufficient to find the appellants criminally liable for a conspiracy to import cocaine into the United States; whether the United States' failure to produce a confidential informant deprived the appellants of a fair trial; whether the prosecution's closing argument deprived the appellants of a fair trial; and whether the district court applied the appropriate penalty statute in setting Giry's prison term. For reasons stated herein, we have found that none of these questions can be answered in favor of the appellants. Consequently, we affirm the verdicts entered and sentences imposed by the district court.

Factual Background

I. Evidence of the Drug Importation Conspiracy

Giry and Seward are citizens of, respectively, France and Great Britain. The evidence purporting to show the existence of and their participation in a drug importation conspiracy consists of nine meetings and two telephone calls occurring between February, 1984 and February, 1985. In addition to Giry and Seward, participants in these encounters included Albert Cracoliche ("Cracoliche"), a confidential government informant, and two Drug Enforcement Administration agents ("DEA agents"), William Mitchell ("Mitchell") and Victor Aponte ("Aponte"). Four of the nine meetings took place on American territory--three in Puerto Rico and one in New York City--while the other five meetings took place on various foreign nations' territories in the Caribbean.

The first meeting, which was arranged by Cracoliche, took place on February 16, 1984 in the Dutch West Indies. Present were Cracoliche and his girlfriend, the two DEA agents and the appellants. Cracoliche performed the introductions, then withdrew from the conversation. Agent Mitchell identified himself as a representative of an organization in the New York, Connecticut and New Jersey area that was interested in purchasing 150 kilograms of cocaine for distribution in the New York area. The group discussed the possibility of Giry's and Seward's supplying the 150 kilograms of cocaine. Both Giry and Seward insisted that delivery could not be made on United States territory.

The second meeting took place in Puerto Rico on March 9, 1984. Present were Cracoliche, the two DEA agents and the appellants. The agents first showed Giry $3,000,000 in cash at a local bank, after which they drove to a local hotel for a meeting with both Giry and Seward, dropping off Cracoliche along the way. At the hotel it was agreed that the cocaine and the cash payment would be exchanged in the French West Indies. This was the last meeting attended by either Seward or Cracoliche. Cracoliche's subsequent involvement was limited to arranging, without attending, the third, fourth, sixth and seventh meetings.

The third through the seventh meetings involved only Giry and the two DEA agents. These five meetings took place between March and October, 1984 and were located in, respectively, Puerto Rico, the Dutch West Indies, Curacao, the Dutch West Indies and Puerto Rico. Discussion at these meetings focused on delays, price increases and quality reductions that Giry claimed were being imposed by his Columbian supply sources. In response to these problems, Giry and the DEA agents reduced the quantity of the prospective purchase from 150 to 135 kilograms of cocaine. At the seventh meeting, Giry told the DEA agents that Seward had been arrested in Connecticut while working on a separate marijuana smuggling operation that Giry had organized.

On October 30, 1984 Giry met with agent Mitchell and another undercover agent at La Guardia Airport in New York. The cocaine price had again increased, and the quantity to be purchased was therefore reduced to 100 kilograms. Giry stated that if Mitchell still objected to the additional price increase, he would pay Mitchell $35,000 and stop the deal. But Mitchell declined this offer, and the parties made plans to consummate the deal within four to six weeks in the French West Indies.

Apparently, on either December 18 or 19, 1984, Giry helped load 100 kilograms of cocaine onto a fishing trawler on the Columbian coast. A U.S. Coast Guard cutter spotted the trawler at sea and gave chase, and the trawler's crew dumped the cocaine overboard. Over a month later, on January 31 and February 1, 1985, Giry telephoned agent Mitchell to arrange another meeting, answering "yes" to Mitchell's question as to whether the cocaine had been lost. These two calls are the basis of Giry's conviction on the two counts alleging violations of 21 U.S.C. section 843(b).

The ninth meeting, with only Giry and the two agents present, took place on February 3, 1985 in Santo Domingo. Giry explained that he had helped load cocaine onto the boat that had been intercepted the previous December, that the crew had dumped all the cocaine overboard before the Coast Guard boarded the boat, and that his Columbian suppliers still wanted to consummate the 100 kilogram transaction. The next day, agent Mitchell called Giry to a meeting at the Santo Domingo airport. Upon arriving at the airport, Giry was detained, deported to Puerto Rico and arrested by American authorities.

II. The Government's Failure to Produce Cracoliche

On March 26, 1985 Giry filed a motion requesting the court to order the production of the government's confidential informant, whose name was then undisclosed. On June 26, 1985, after an evidentiary hearing, U.S. Magistrate Justo Arenas issued an opinion and order granting Giry's motion. The Magistrate found that Albert Cracoliche "participated in the enterprise as an agent of the United States and was neither a tipster nor an observer." Following Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), the Magistrate concluded that the government was required either to produce the informant or to disclose his whereabouts to Giry, and he ordered the government to file within ten days a written report of its efforts to locate Cracoliche.

On July 5, 1985 the government moved for a fifteen-day extension of time to file the required report, stating that Cracoliche was last known to be in France and that diligent efforts to locate him were under way. Thereafter, apparently upon learning that efforts were being made to find him, Cracoliche telephoned agent Aponte. They scheduled an August 20, 1985 meeting in Puerto Rico at which Giry's attorney, James Lawson, could interview Cracoliche. Lawson flew to Puerto Rico on August 19, but was informed by agent Aponte that Cracoliche would not be able to attend the next day's meeting.

On September 23, 1985 the district court held a status conference at which it ordered the government to attempt to contact Cracoliche, to schedule a meeting between Cracoliche and the defense attorneys and to inform the court by September 30 of the government's efforts to carry out these orders. No meeting was arranged, and on September 30 the government filed an "informative motion," consisting of agent Aponte's recitation of efforts made to locate and produce Cracoliche.

Almost five months later, on February 18, 1986, the district court held a hearing on all pending pre-trial motions, which included Giry's motion to dismiss the indictments based on the government's failure to produce Cracoliche. On the same day, the government filed a second informative motion, incorporating and supplementing its first informative motion. As recited in these motions, the efforts made by the government to locate and produce Cracoliche included the following: after the government was first ordered to locate Cracoliche in June, 1985, agent Aponte made inquiries as to Cracoliche's whereabouts through contacts at the French National Police Narcotics Section; apparently as a result of these inquiries, Cracoliche telephoned Aponte in August, 1985, and the two scheduled an August 20 meeting in Puerto Rico to which the defense attorney would be invited; on August 19, Cracoliche spoke by telephone with Aponte and refused to travel from the French West Indies to Puerto Rico, expressing fears for his safety; Aponte then explained the situation to defense attorney Lawson, who was unable to travel to the French West Indies at that time; agent Aponte made further attempts to telephone Cracoliche in September, receiving a pre-recorded message in French to the effect that the number was not in service; Aponte asked Jean Ravenello, a French Liaison Officer in New York, to investigate this last known telephone number of...