U.S. v. Gonzalez, s. 81-5004

• Decision Date: 16 November 1981
• Docket Number: 81-5528,Nos. 81-5004,s. 81-5004
• Citation: 661 F.2d 488
• Parties: 9 Fed. R. Evid. Serv. 623 UNITED STATES of America, Plaintiff-Appellee, v. Raphael L. GONZALEZ, Defendant-Appellant. . Unit B *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 488

661 F.2d 488

9 Fed. R. Evid. Serv. 623

UNITED STATES of America, Plaintiff-Appellee, v. Raphael L. GONZALEZ, Defendant-Appellant.

Nos. 81-5004, 81-5528.

United States Court of Appeals, Fifth Circuit.

Unit B ^*

Nov. 16, 1981.

Neal R. Lewis, Laurel D. White, Miami, Fla., for defendant-appellant.

Kenneth W. Lipman, Sonia Escobio O'Donnell, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.

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

Before HILL, Circuit Judge, SMITH, ^** Judge, and HENDERSON, Circuit Judge.

HENDERSON, Circuit Judge:

In these consolidated appeals, Raphael Gonzalez challenges his conviction in the United States District Court for the Southern District of Florida. We affirm the decision of the district court and deny relief on both appeals.

On July 16, 1980, the appellant was named as a defendant in four counts of a six-count indictment. Count I charges Gonzalez with conspiracy to "possess with intent to distribute and to distribute quantities of ... methaquaalone tablets" on or about June 16, 1980 to on or about June 20, 1980, in violation of 21 U.S.C. § 846; Count II accuses him of possession "with intent to distribute ... approximately 5,000 methaquaalone tablets" on June 17, 1980, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; Count III alleges that on June 17, 1980, he distributed "approximately 5,000 methaquaalone tablets," in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; in Count V complaint is made that Gonzalez used a "communication facility" in the commission of a felony, in violation of 21 U.S.C. § 843(b). Pretrial discovery was conducted pursuant to a standing discovery order issued by the trial court. After a jury trial the appellant was found guilty on all four counts. He received concurrent sentences of three years in prison on each count, with a special parole term of two years on counts two and three. He subsequently filed a timely appeal from the convictions and sentence to this court. This first appeal is styled case number 81-5004.

After submitting the notice of appeal in case number 81-5004, Gonzalez filed with this court a motion to remand the case for a hearing and for a new trial based on newly discovered evidence. A panel of this court denied the motion without prejudice, directing the appellant to move for a preliminary determination on the motion for a new trial in the trial court. Following this direction, Gonzalez filed a motion for a new trial in the district court, which held that if the case was remanded, it would deny the motion. Gonzalez then appealed this determination of the district court. By an order of this court, the second appeal, case number 81-5528, was consolidated with the first appeal, number 81-5004.

The complexity of the facts warrant a detailed examination. According to the government's witnesses, Drug Enforcement Administration (DEA) Agent Vincent Mazzilli and confidential informant, Ramon Herrera, they, together with the appellant and co-conspirators Javier Morejon and Jorge Leon, met on the afternoon of June 16, 1980, at a Howard Johnson's restaurant in Miami, Florida. This meeting was arranged by Herrera to negotiate a sale of methaquaalone (quaaludes) between the indicted co-conspirators and Mazzilli, an undercover "buyer." At this time there was a discussion relating to the sale of 800,000 quaalude tablets. The government witnesses testified that Gonzalez represented that he could presently and potentially supply large quantities of high quality quaaludes at a certain price per tablet. Gonzalez left the meeting before its conclusion, ostensibly to get the first batch of quaaludes for delivery to Mazzilli. He never returned to the restaurant because he had become suspicious of Mazzilli. Mazzilli then went home for the evening and the rest of the group departed the premises. All of the group, except Mazzilli, reconvened later that night at the apartment of Leon's girl friend. At this later meeting, it was agreed that the drugs, 250,000 quaalude tablets, would be delivered the next morning at a shopping mall. Leon agreed to transport the drugs in a car, at which point Leon would "switch cars" with Herrera who would hand over the money for the drugs. The next morning, June 17, 1980, Leon arrived at the mall in Gonzalez' car which contained 5,000 methaquaalone tablets. Leon told Herrera that these were pills from a previous deal which had gone "sour" and that he could take these pills to Mazzilli. They exchanged cars and Herrera took the appellant's automobile to DEA headquarters where the tablets were removed from the vehicle. Herrera then returned to the mall but without the money for the pills.

Over the next few days, there were numerous phone conversations between Herrera, Mazzilli, and Gonzalez concerning payment for the 5,000 pills which had already been delivered and plans for future quaalude deliveries. Several of the conversations with Gonzalez were taped and admitted into evidence at the trial. On June 20, 1980, Gonzalez informed Herrera that another quantity of pills would be delivered to the shopping mall by a man named "Ronnie." Herrera met Ronnie at the mall, switched cars and drove the vehicle containing the pills to DEA headquarters. Upon examination, the DEA found 40,000 white tablets in the car which were analyzed as diazapam (valium), not methaquaalone. These pills and testimony about this transaction were admitted into evidence at the trial under Count One, the conspiracy count. Gonzalez was arrested on June 20, 1980.

At the trial, the appellant's testimony varied greatly from the government's version. Gonzalez stated that he attended the meeting at the Howard Johnson's restaurant for the sole purpose of conferring with Leon about his personal problems. Gonzalez claimed that he did not participate in the discussion when it turned to drugs, but was "merely present." He also testified that his appearance at the apartment of Leon's girl friend was prompted by personal concern for Leon and that he left once the subject of drugs entered the conversation. According to Gonzalez, he loaned his vehicle to Leon but had no prior knowledge of the delivery of the 5,000 quaaludes to Mazzilli. By his account, he and his family had been threatened by Mazzilli and Herrera and, because of this fear, he had talked about drugs in various taped conversations with Mazzilli and Herrera. In light of the guilty verdict, it seems obvious that the jury resolved the factual questions in favor of the government.

In case number 81-5004, the appellant raises three grounds of error.

Gonzalez first claims that the district court erred in admitting into evidence, under Count One, the 40,000 diazapam tablets and testimony concerning this transaction. The trial judge excluded the chemist's report on the tablets, yet permitted the pills to be admitted into evidence. There was testimony before the jury that although these tablets were not methaquaalone, the diazapam packages bore markings similar to that used for quaaludes. The jury was never apprised of the exact chemical content of the drugs. Gonzalez alleges that since the indictment specifically refers to a methaquaalone conspiracy, the introduction of the diazapam pills was either a prohibited amendment of the indictment or a prejudicial variance and, thus, requires reversal. Although a constructive amendment of the indictment and a variance between the allegations and proof are analogous, they are nevertheless distinguishable. Stirone v. United States, 361 U.S. 212, 217, 80 S.Ct. 270, 273, 4 L.Ed.2d 252 (1960); United States v. Ylda, 653 F.2d 912, 913-14 (5th Cir. 1981). See also 8 Moore's Federal Practice P 7.05(1), (3) (2d ed. 1981).

To be tried solely on the allegations returned by the grand jury in the indictment is a substantial constitutional right of a criminal defendant facing felony charges. Stirone, 361 U.S. at 215-218, 80 S.Ct. at 272-273; U.S.Const. amend. V. After an indictment is returned, the "charges may not be broadened through amendment except by the grand jury itself." Stirone, 361 U.S. at 215-16, 80 S.Ct. at 272. However, there can be a constructive amendment to the indictment when the evidence presented at trial and the instructions given to the jury "so modif(y) the elements of the offense charged that the defendant may have been convicted on a ground not alleged by the grand jury's indictment." Ylda, 653 F.2d at 914. See Stirone, 361 U.S. at 217, 219, 80 S.Ct. at 273, 274; United States v. Bizzard, 615 F.2d 1080 (5th Cir. 1980); United States v. Salinas, 601 F.2d 1279, 1282 (5th Cir. 1979), amd. 610 F.2d 250 (5th Cir. 1980). Since a constructive amendment violates the defendant's right to be tried only on charges presented in the indictment, such error is fatal and requires reversal. Stirone, 361 U.S. at 219, 80 S.Ct. at 274; Ylda, 653 F.2d at 913; United States v. Carroll, 582 F.2d 942 (5th Cir. 1978). See also Moore's Federal Practice, P 7.05(1) (2d ed. 1981).

In this case, there was no amendment because it cannot be said that the appellant was convicted of an offense other than that contained in the indictment. Count One specified a methaquaalone conspiracy. Five thousand quaaludes, as well as testimony and tapes of Gonzalez' statements concerning the sale of methaquaalone were introduced as evidence to support Count One. While drugs other than quaaludes were also admitted, the judge's instructions to the jury clearly restricted the charge to a conspiracy involving methaquaalone only. We see no possibility that the jury mistakenly convicted Gonzalez of anything other than a methaquaalone conspiracy.

Appellant, however, is correct in asserting that a variance existed between the allegations and the proof, although this variance does not require reversal. The 40,000 tablets were diazapam, not methaquaalone, and therefore conflicted with the allegations of Count One, which were clearly limited...