U.S. v. Gonzalez, s. 90-5188

• Decision Date: 16 November 1990
• Docket Number: Nos. 90-5188,s. 90-5188
• Citation: 918 F.2d 1129
• Parties: 31 Fed. R. Evid. Serv. 927 UNITED STATES of America, Appellee, v. Lorenzo GONZALEZ, a/k/a "Tito," Appellant. UNITED STATES of America, Appellee, v. Modesto Anthony CABA, Appellant. UNITED STATES of America, Appellee, v. Raphael VASQUEZ, Appellant. to 90-5190
• Court: U.S. Court of Appeals — Third Circuit

Page 1129

918 F.2d 1129

31 Fed. R. Evid. Serv. 927

UNITED STATES of America, Appellee, v. Lorenzo GONZALEZ, a/k/a "Tito," Appellant.

UNITED STATES of America, Appellee, v. Modesto Anthony CABA, Appellant.

UNITED STATES of America, Appellee, v. Raphael VASQUEZ, Appellant.

Nos. 90-5188 to 90-5190.

United States Court of Appeals Third Circuit

Argued Aug. 31, 1990.

Decided Nov. 16, 1990.

Rehearing Denied in Nos. 90-5188,

90-5190 Jan. 8, 1991.

Richard Coughlin, John Hughes (argued), Office of Federal Public Defender, Camden, N.J., for appellant Lorenzo Gonzalez.

Peter V. Ryan (argued), West Orange, N.J., for appellant Modesto Anthony Caba.

Michael N. Pedicini (argued), West Orange, N.J., for appellant Raphael Vasquez.

Edna B. Axelrod, R. David Walk (argued), Office of U.S. Atty., Newark, N.J., for appellee.

Before HUTCHINSON, NYGAARD and ROSENN, Circuit Judges.

OPINION OF THE COURT

HUTCHINSON, Circuit Judge.

In these consolidated appeals, Lorenzo Gonzalez (Gonzalez), Raphael Vasquez (Vasquez) and Modesto Caba (Caba) appeal from their judgments of conviction and the sentences imposed for their participation in a December 7, 1988, sale of over 700 grams of cocaine. A federal grand jury indicted each of them on three counts. Count one charged conspiracy to possess with the intent to distribute in excess of 700 grams of cocaine, in violation of 21 U.S.C.A. Sec. 841(a)(1) (West 1981); count two charged possession with intent to distribute in excess of 700 grams of cocaine, in violation of 21 U.S.C.A. Sec. 841(a)(1) and 18 U.S.C.A. Sec. 2 (West 1969) (defining aiders and abettors); and count three charged knowing and willful use and carrying of a firearm during a drug trafficking crime, in violation of 18 U.S.C.A. Secs. 924(1) and (2) (West Supp.1990).

All three defendants were convicted on the conspiracy and firearms charges. Only Gonzalez and Vasquez, however, were convicted of actually possessing the cocaine. The respective sentences of the three men were determined and enhanced in accordance with the United States Sentencing Guidelines (Guidelines). A fourth individual, Fioldaliza Gabriel (Gabriel), also was involved, but she agreed to cooperate with the government and pleaded guilty to a lesser offense. Since we find that the jury verdicts and the sentences imposed by the district court are reasonable and supported by the evidence, we will affirm.

I.

In late 1988, the Drug Enforcement Agency (DEA), in conjunction with the Jersey City and Newark police departments, directed an operation in which a series of drug transactions were made between a Jersey City police detective assigned to the DEA (Detective) and Gonzalez and his associates. On November 16, 1988, the Detective purchased 49 grams of cocaine from Gonzalez for $1,350.00. The drug transaction took place in Gabriel's apartment. Vasquez had brought the cocaine to the apartment.

The Detective next called Gonzalez on December 5, 1988, to purchase $14,000.00 worth of cocaine. Evidence presented at trial showed that on December 6, 1988, the night before this purchase was to take place, Gonzalez and Vasquez went to Gabriel's apartment to store some cocaine there. Gabriel objected to the use of her home.

The drug transaction with the Detective took place in Gabriel's apartment on the next day, December 7, 1988. The defendants arrived at Gabriel's apartment first. While waiting for the Detective to arrive, Caba remarked that it was getting late for him to deliver the money. When the Detective got to the apartment, he went into the bedroom with Gonzalez to examine the cocaine. Vasquez, Caba and Gabriel were in another room while this was going on. When the Detective returned from the bedroom and began to leave, supposedly to get the money for the cocaine from his car, Caba momentarily blocked his way. After the Detective said something to the effect of "That's good coke, man," Caba allowed him to pass and exit the apartment. The Detective then went outside and signaled the other police officers and DEA agents waiting to assist him in the arrest.

Gonzalez, Vasquez and Caba were in the kitchen of the apartment when these officers and agents entered Gabriel's apartment. One of the officers (Officer) entered the kitchen, identified himself, and ordered the defendants to put their hands up in the air. Caba then reached for a gun in the waistband of his pants. According to the Officer the gun was "right in the front," "right in the middle" and "very obvious." The Officer struggled with Caba, but was able to take the gun away from him. About this time, another law enforcement officer entered the kitchen and helped the Officer to control the defendants. The gun taken from Caba was cocked and fully loaded. The cocaine was found in a cabinet beneath the sink.

After their arrest, a federal grand jury indicted the defendants. Before trial, the government offered a package plea agreement to the three men. If Vasquez and Gonzalez would plead guilty to possession (count two), and Caba to the firearms charge (count three), the other counts against them would be dropped. Unanimous acceptance of the proposal was required. Although all three initially agreed to the plea package, Caba later refused to admit certain facts related to his guilty plea. The proposal was therefore withdrawn by the government, and the plea bargains never presented to the district court.

Gonzalez, Vasquez and Caba were tried together before a jury in the United States District Court for the District of New Jersey beginning on October 17, 1989. During the trial, Caba moved to sever his case from that of the other two defendants, and also submitted a motion to sequester the government's case agent. Caba wished to prevent the case agent, a scheduled witness, from coordinating his testimony with another federal agent, who was also scheduled to testify. The district court denied Caba's severance motion because he did not make the showing of prejudice necessary to grant a separate trial. The district court likewise denied Caba's sequestration request because it determined that it lacked authority to bar the government's case agent from the courtroom.

After hearing all the evidence, the jury convicted Gonzalez and Vasquez on all three counts. Caba was found guilty on count one, the drug conspiracy charge, and count three, the firearms charge, but was acquitted on count two, the substantive drug possession charge.

The district court then sentenced the three, pursuant to the Guidelines. Gonzalez and Vasquez received concurrent sentences of 70 months on counts one and two. Caba received a 70 month sentence on his conviction under count one. All three defendants also received mandatory sentences of 60 months on count three, to be served consecutively to the other sentences. Gonzalez's sentence was enhanced because the district court determined that he was the leader and supervisor of the conspiracy. Caba's offense level was raised because the court determined that it was appropriate to consider the large amount of cocaine seized during the arrest in determining his sentence.

After sentencing, all three defendants appealed to this Court. Because we find no merit in the appellants' contentions, we will affirm the district court's judgments.

II.

The district court had jurisdiction over these cases pursuant to 18 U.S.C.A. Sec. 3231 (West 1985). We have jurisdiction over these appeals pursuant to 28 U.S.C.A. Sec. 1291 (West Supp.1990) and 18 U.S.C.A. Sec. 3742 (West 1985 & Supp.1990). Our standard of appellate review of the district court decisions and findings varies by issue.

When appellants challenge the sufficiency of the evidence presented at trial, it is well established that, in a review following conviction, all issues of credibility within the province of the jury must be viewed in the light most favorable to the government. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); Government of Virgin Islands v. Williams, 739 F.2d 936, 940 (3d Cir.1984). This court must affirm the convictions if a rational trier of fact could have found the defendants guilty beyond a reasonable doubt and the convictions are supported by substantial evidence. See Williams, 739 F.2d at 940. To sustain the jury's verdict, the evidence "does not need to be inconsistent with every conclusion save that of guilt." Id. (quoting United States v. Allard, 240 F.2d 840, 841 (3d Cir.), cert. denied, 353 U.S. 939, 77 S.Ct. 814, 1 L.Ed.2d 761 (1957)). "[A] claim of insufficiency of the evidence places a very heavy burden on an appellant." United States v. Losada, 674 F.2d 167, 173 (2d Cir.), cert. denied, 457 U.S. 1125, 102 S.Ct. 2945, 73 L.Ed.2d 1341 (1982).

The legal issues, including those related to the package plea agreements originally proposed by the government, are subject to plenary review. See United States v. Preston, 910 F.2d 81, 84 (3d Cir.1990).

The district court's denial of Caba's motions for severance and for sequestration of a witness are reviewable for abuse of discretion. This Court has held that:

In the absence of an affirmative showing of an abuse of discretion, this Court will not interfere with the [severance] determinations made by the District Court. The burden of demonstrating such abuse is a heavy one. Indeed the Supreme Court has indicated that it will not intervene in such matters unless the District Court's ruling is clearly erroneous.

United States v. Somers, 496 F.2d 723, 730 (3d Cir.), cert. denied, 419 U.S. 832, 95 S.Ct. 56, 42 L.Ed.2d 58 (1974) (citations omitted); see also Government of Virgin Islands v. Edinborough, 625 F.2d 472, 475 (3d Cir.1980) (holding that the standard of review of a denial of a sequestration motion is abuse of discretion).

When reviewing calculations performed under the Guidelines:

The court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the...