U.S. v. Machado, 84-5741

• Decision Date: 03 December 1986
• Docket Number: No. 84-5741,84-5741
• Citation: 804 F.2d 1537
• Parties: 22 Fed. R. Evid. Serv. 145 UNITED STATES of America, Plaintiff-Appellee, v. Victor MACHADO, Miguel Angel Victorero, Edgardo Rafael Manotas, Fernando Gaviria-Aguirre, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1537

804 F.2d 1537

22 Fed. R. Evid. Serv. 145

UNITED STATES of America, Plaintiff-Appellee, v. Victor MACHADO, Miguel Angel Victorero, Edgardo Rafael Manotas, Fernando Gaviria-Aguirre, Defendants-Appellants.

No. 84-5741.

United States Court of Appeals Eleventh Circuit.

Dec. 3, 1986.

Manuel Mari, Romaguera & Mari, P.A., Coral Gables, Fla., for Machado.

Theodore J. Sakowitz, Federal Public Defender, Miguel Caridad, Asst. Federal Public Defender, Miami, Fla., for Victorero.

Samuel I. Burstyn, Michel Ociacovski Weisz, Miami, Fla., for Manotas.

Leon B. Kellner, U.S. Atty., Robert F. Dunlap, David O. Leiwant, Nancy L. Worthington, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

Reemberto Diaz, Diaz & Batista, Hialeah, Fla., for Gaviria-Aguirre.

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

Before RONEY, Chief Judge, KRAVITCH, Circuit Judge, and ATKINS ^*, Senior District Judge.

CORRECTED OPINION

KRAVITCH, Circuit Judge:

This appeal involves four of five defendants who were tried jointly for drug related offenses. Appellant Edgardo Rafael Manotas was convicted of: conspiring to possess cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 846 (Count 1); possessing cocaine on January 4, 1984, with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2 (Count 2); and possessing cocaine on January 6, 1984, with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2 (Count 3). In addition to convictions on the first three counts, appellant Miguel Angel Victorero was convicted of unlawfully carrying a firearm during the commission of a felony, in violation of 18 U.S.C. Sec. 924(c)(2) (Count 4). Appellant Fernando Gaviria-Aguirre was convicted on Counts 1-3 and carrying firearms unlawfully during the commission of a felony, in violation of 18 U.S.C. Sec. 924(c)(2) (Count 5). Finally, appellant Victor Machado was convicted on counts one and three.

In addition to challenging the sufficiency of the evidence, appellants' other issues on appeal include: (1) whether coconspirator statements were erroneously admitted as to appellant Manotas; (2) whether admitting coconspirator statements against Manotas constituted a denial of sixth amendment confrontation rights; (3) whether denial of Manotas's severance motion was an abuse of discretion; (4) whether limitations imposed by the trial judge on the scope of cross-examination of the key government witness was an abuse of discretion; (5) whether the trial court erred in denying appellant Gaviria-Aguirre's motions for judgment of acquittal on the charges of carrying a weapon in the commission of a felony and conspiracy to possess cocaine with intent to distribute. We find no reversible error in the trial court's careful and patient handling of this case. We therefore affirm.

I. BACKGROUND

The chain of events that led to the convictions began on December 8, 1983, when Paolo Longo visited his former co-employee Carlos Munoz to suggest that if Munoz wanted to make a lot of money, Longo could supply him with anywhere from one to a thousand kilograms of cocaine. Longo told Munoz to contact him if he succeeded in locating some buyers. After Longo left, Munoz contacted an agent at the Bureau of Alcohol, Tobacco and Firearms, ¹ who introduced Munoz to Agent Jacobsen of the Department of Drug Enforcement Administration (DEA). In exchange for cooperating with the DEA in arranging a purchase of cocaine, Agent Jacobsen promised to appear on Munoz's behalf at resentencing hearings on Munoz's outstanding criminal conviction. ²

The first of the appellants to enter the story was Miguel Angel Victorero. On December 15, 1983, Victorero accompanied Longo to the automobile dealership where Munoz worked. Longo introduced Victorero to Munoz and inquired as to whether Munoz had contacted any buyers. The next day, Longo telephoned Munoz to notify him that Longo was returning to Munoz's place of employment. DEA agents prepared for this meeting by establishing a surveillance of Munoz's workplace and attaching a recording device to Munoz. Victorero was present when Longo told Munoz that if Munoz needed any cocaine he could call "John" who would give the cocaine to Victorero, who in turn would bring it to Munoz. Longo described how Munoz would then give the money to Victorero, Victorero would deliver the money to John, and Victorero would bring more cocaine later if Munoz desired. After this meeting, DEA agents instructed Munoz to delay the deal until after January 1, 1984.

The next meeting occurred on December 22, 1983, again at Munoz's place of employment. As before, Longo arrived with Victorero and inquired as to whether Munoz was ready to make the deal. Longo advised Munoz that he would be out of town for the holidays but that he would leave one kilogram of cocaine either with Munoz or with John. Munoz told Longo that he did not want any cocaine in his place of business and that he would call when he was ready to deal. Longo once again told Munoz that if Munoz wanted to contact John, Victorero would serve as a middleman. Longo commented that if Munoz didn't give Victorero the money, Victorero "knows what to do." Victorero laughed and nodded.

The first sale of drugs was arranged on January 3, 1984 at the automobile dealership where Munoz worked. Victorero accompanied Longo to the meeting and was present throughout. Longo agreed to deliver one kilogram of cocaine to Munoz on January 4, 1984 for a price of $25,000. The exchange was to occur at 3:00 p.m. in the parking lot of the Midway shopping mall, near a department store.

On January 4, Munoz went to the designated location with $25,000 in DEA cash stuffed in his pocket. ³ When Longo failed to appear, Munoz telephoned him. Longo promised to meet Munoz later at the same shopping mall location. When Longo arrived, Munoz got in Longo's car and they drove to a bank of telephones where Longo dialed a number and spoke to someone named "Fernando." Munoz heard Longo tell Fernando that the money and the people were ready and that they were very upset about the delay. Fernando then asked to speak with Munoz. Fernando apologized to Munoz for the delay and promised that there would be no delays the next time and that Munoz could be sure that his delivery was going to be no later than 7:00 p.m. that evening. Munoz then passed the receiver back to Longo and heard Longo say "Coral Way and 87th Avenue, Playworld. It was to be in a Camaro." After driving Munoz back to his car, Longo left.

It was at this point that appellant Edgardo Rafael Manotas entered the story. DEA agents followed Longo's Mercedes as he left the Midway mall area and proceeded to the Playworld mall. Upon arriving at the Playworld mall area, Longo, carrying nothing in his hands, left his vehicle and walked to an area in the mall where he met Manotas. Longo and Manotas entered a 1983 Chevrolet Camaro. ⁴ Manotas drove the Camaro to the area where Longo's Mercedes was parked and Longo exited carrying a white plastic bag.

Longo immediately proceeded back to the Midway mall area where he met with Munoz. Longo placed a brown paper bag containing a plastic bag with one kilogram of cocaine in it into Munoz's car and Munoz gave Longo the $25,000. ⁵ Longo and Munoz agreed to meet the next morning in the parking lot of a department store where Longo would sell Munoz fifty kilograms of cocaine. When Longo left, DEA agents followed him to a restaurant where Longo made some telephone calls and met with appellant Manotas who arrived in the Camaro he had been driving earlier.

The next day, Munoz learned that the fifty kilogram deal would be delayed. Early that morning, Longo telephoned Munoz to cancel the 9:00 a.m. meeting. Later that afternoon, Munoz met with Longo at the designated department store parking lot but Longo declared that the deal was off for that day because he was concerned about some suspicious cars driving around the area.

Around 7:00 p.m., Longo called to arrange a meeting behind a restaurant in Hialeah. Munoz informed the DEA agents and went to the meeting. When he arrived, Longo approached his car and told Munoz to wait there because "the Colombians, the men who had the cocaine would like to talk to us right there." Approximately ten minutes later, two men drove up in a blue sports car. Appellant Fernando Gaviria-Aguirre got out of the car and met with Longo and Munoz. Gaviria-Aguirre apologized to Munoz for the delay in the first deal and promised that the fifty kilogram deal would occur the next day and it would be sharp, with no more mistakes. Munoz was introduced to Cabrera, the driver of the car and the man "who owned the merchandise." The deal was set for 10:00 a.m. in a shopping center parking lot.

On January 6, 1984, both sides prepared for the fifty kilogram deal. Sometime prior to 10:00 a.m., Maritza Rodriguez, appellant Victor Machado, and an unidentified male rented a U-Haul truck from a service station in Hialeah. ⁶ Meanwhile, DEA agents in a surveillance van at the shopping center parking lot observed Victorero conducting counter-surveillance by walking up and down the aisles of parked cars and peering inside of them. Victorero was carrying a handbag that contained a gun. When Munoz arrived at the shopping center at 10:00, Longo invited him to walk to a nearby shop to drink Cuban coffee. Appellant Gaviria-Aguirre drove up in a rental car with his infant son and met Munoz and Longo when they returned to the parking lot.

Gaviria-Aguirre told Munoz that the "merchandise" was inside a U-Haul truck parked facing the street at a nearby location and Longo then drove Munoz in Gaviria-Aguirre's rental car to the U-Haul truck. Machado and the unidentified male were waiting at the U-Haul. Machado admitted that they were "Fernando's men." Munoz went inside the back of the truck and inspected the approximately ten kilograms of cocaine.

Longo and...