U.S. v. Jadusingh

• Decision Date: 07 September 1993
• Docket Number: Nos. 92-2299,92-2404,s. 92-2299
• Citation: 12 F.3d 1162
• Parties: UNITED STATES, Appellee, v. Desmond JADUSINGH, Defendant, Appellant. UNITED STATES, Appellee, v. Karen WHITAKER, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1162

12 F.3d 1162

UNITED STATES, Appellee, v. Desmond JADUSINGH, Defendant, Appellant.

UNITED STATES, Appellee, v. Karen WHITAKER, Defendant, Appellant.

Nos. 92-2299, 92-2404.

United States Court of Appeals First Circuit.

Heard Sept. 7, 1993.

Decided Jan. 4, 1994.

Rachel Brill with whom Benicio Sanchez Rivera, San Juan, PR, was on brief, for appellant Jadusingh.

Luz M. Rios Rosario, Hato Rey, PR, for appellant Whitaker.

Desmond Jadusingh, pro se.

Jeanette Mercado Rios, Asst. U.S. Atty., with whom Charles E. Fitzwilliam, U.S. Atty. and Jose A. Quiles-Espinosa, Sr. Litigation Counsel, Hato Rey, PR, were on brief, for appellee.

Before BREYER, Chief Judge, SELYA and STAHL, Circuit Judges.

STAHL, Circuit Judge.

After a three-day jury trial, defendants-appellants Desmond Jadusingh and Karen Whitaker were convicted of conspiring to import approximately two kilograms of cocaine into the customs territory of the United States in violation of 21 U.S.C. Secs. 952 and 963. Appellants also were convicted of conspiring to possess with intent to distribute the same cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and 846. On appeal, both raise a host of challenges to their convictions. Finding no reversible error, we affirm.

I. FACTUAL BACKGROUND

Because defendants challenge the sufficiency of the evidence to support their convictions, we summarize the evidence in the light most favorable to the government. See, e.g., United States v. Mena-Robles, 4 F.3d 1026, 1029 (1st Cir.1993). Donna Marie Carr is the mother of Kimberly Miller. In the summer of 1991, Carr was approached by Miller's boyfriend, Desmond Jadusingh, and asked to participate in an international drug smuggling venture. Jadusingh wanted Carr to travel with two couriers he had recruited, Miller and Karen Whitaker, so that Carr could learn the operation and step in if either Miller or Whitaker backed out. The trip was planned for January 1992.

As the date of departure drew near, Carr approached Pittsfield, Massachusetts, police officer Timothy Surrell about the venture. He, in turn, alerted the Massachusetts Drug Enforcement Agency ("MDEA") and arranged for two MDEA agents to join him in a meeting with Carr. The group gathered at a local restaurant, where Carr told Surrell and the agents that she would be meeting with Jadusingh later in the day to finalize the arrangements. Fearing that she would not remember all of the anticipated conversation, Carr volunteered to wear a concealed wire to the rendezvous at Jadusingh and Miller's apartment. That evening, Carr recorded a conversation in which Jadusingh, Whitaker and Miller discussed their plans to travel to Puerto Rico to purchase and import two kilograms of cocaine. Meanwhile, DEA agents and local police, in a nearby parking lot, listened to the live transmission of the conversation.

Two days later, on January 16, 1992, Carr drove Jadusingh, Whitaker and Miller from Pittsfield to Jadusingh's house on Long Island, New York, where Jadusingh gathered money and clothing for the trip. The following morning, Jadusingh's brother drove all four to Kennedy International Airport, where they boarded a plane for Puerto Rico. Upon arrival, the group, under surveillance by officers of the federal Drug Enforcement Administration ("DEA"), traveled to the Holiday Inn Crown Plaza in Carolina, Puerto Rico. All three of the women stayed in room 519 while Jadusingh, who wanted to keep his distance from the women, stayed in room 309, which was registered to a Karen Bailey. ¹ Whitaker and Carr were instructed by Jadusingh not to mention his name in public and to contact him only by phone. They were provided a telephone credit card number to charge calls as needed. For the most part, Jadusingh rationed out instructions and money through Miller on an as-needed basis. He also demanded receipts for all expenses.

Shortly after arriving in Puerto Rico, the group was informed by its drug contact, Etlyn, that there was an unexpected change of plans. Jadusingh's cocaine had not been unloaded in Puerto Rico as expected, and would Meanwhile, Miller and Whitaker purchased razor blades, plastic baggies, tape and girdles. With the help of Carr, the two women divided and packed the cocaine according to Jadusingh's instructions. Jadusingh, who was in frequent phone contact with his couriers, directed them to bring the cocaine back to the United States by way of St. Martin and St. Thomas. According to Jadusingh, smuggling cocaine through customs in St. Thomas was easier than through customs in Puerto Rico. When Jadusingh subsequently discovered that he could not fly to St. Thomas without a passport, however, he told the women to abandon Junior's additional delivery and return immediately to the Holiday Inn in Puerto Rico.

                have to be picked up in Curacao. 2  While Jadusingh remained in Puerto Rico, the three women, accompanied by surveilling undercover DEA agents, traveled to Curacao to pick up the cocaine.  Once there, Miller met with a man known only as Junior and exchanged $5800 of Jadusingh's money for approximately two kilograms of cocaine.  In an attempt to compensate for the unplanned detour, Junior promised an additional two kilograms of cocaine and instructed the women to change hotels and await delivery
                

On January 23, 1992, Miller and Whitaker taped the baggies containing the cocaine to their stomachs and further secured the contraband with the girdles. Together with Carr, they boarded a plane bound for Aruba. After spending the night in Aruba, Miller and Whitaker again secured the cocaine to their bodies and boarded a plane for Puerto Rico. Meanwhile, at Puerto Rico's Luis Munoz Marin International Airport, Senior Customs Inspector Sonia Maldonado was alerted by DEA agents that two persons would be arriving from Aruba with contraband. Maldonado, who was not told which passengers would be carrying the drugs, became suspicious of Whitaker and Miller because they were wearing bulky winter jackets on what she described as a particularly hot day. A personal search of Whitaker by Maldonado and of Miller by Senior Customs Inspector Maria Esquilin uncovered approximately two kilograms of a concealed white powder which was field tested and found to be cocaine. After completing the search, Maldonado delivered Whitaker to DEA agent Eric Johnson. Jadusingh was arrested at the Holiday Inn later that day.

On February 5, 1992, a grand jury returned a two-count indictment against Jadusingh, Miller and Whitaker. Count one charged the defendants with conspiracy to import cocaine from Aruba to the United States in violation of 21 U.S.C. Secs. 952 and 963. Count two charged the defendants with conspiracy to possess with intent to distribute the same cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and 846. The defendants pled not guilty at their arraignment. Jadusingh and Whitaker were tried without Miller, who fled after being released on bail and was later arrested and tried separately. Carr was the government's lead witness at the trial. Jadusingh and Whitaker were convicted on both conspiracy counts.

II. DISCUSSION

On appeal, Jadusingh and Whitaker together primarily argue: (1) the court erred in allowing Donna Carr to testify; (2) the court impermissibly admitted an audiotape into evidence; and (3) the court erred in denying their respective Rule 29 motions for acquittal. ³ Jadusingh further contends 1) that the district court improperly enhanced his sentence, and 2) that he was denied effective assistance of counsel. ⁴ We discuss each argument in turn.

A. Donna Carr

Jadusingh and Whitaker argue that the district court erred in allowing Donna Carr, the government's confidential informant and

lead witness, to testify. Specifically, the defendants claim (1) that the court should have excluded Carr's testimony because the government failed to disclose Carr's criminal history in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and (2) that the trial judge precluded Jadusingh's attorney from effectively cross-examining Carr. We find both of these arguments to be without merit.

1. Brady Violations

In Brady, the Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87, 83 S.Ct. at 1196-1197. The purpose of the Brady rule is "to prohibit the prosecution from intentionally withholding 'evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial.' " United States v. Valencia-Lucena, 925 F.2d 506, 514 (1st Cir.1991) (quoting United States v. Bagley, 473 U.S. 667, 675, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985)). The rule is not, however, intended to " 'displace the adversary system as the primary means by which truth is uncovered.' " Id. (quoting Bagley, 473 U.S. at 675, 105 S.Ct. at 3380).

Here, there was no Brady violation. Although the government did not disclose Carr's 1978 misdemeanor drug conviction until just before the start of the first day of trial, it is uncontested that the government did not actually learn of this conviction until that same day. ⁵ Moreover, Carr's other past substance abuse and outstanding traffic violations were fully disclosed during the direct and cross-examination of Carr at trial. Given this full disclosure of Carr's background by the government, we are at a loss to comprehend defendant's argument that the government committed a Brady violation. ⁶ See id. at 514 (government failure to turn over evidence of confidential informant's drug use was not Brady violation where issue was fully revealed at trial).

2. Cross Examination

Jadusingh next argues that the trial judge unfairly limited the scope of his cross-examination of Carr. In support of this argument, however, Jadusingh offers only the following colloquy...