U.S. v. Marino

• Decision Date: 31 August 1981
• Docket Number: 79-5305 and 79-5278,79-5304,Nos. 79-5277,s. 79-5277
• Citation: 658 F.2d 1120
• Parties: 8 Fed. R. Evid. Serv. 1386 UNITED STATES of America, Plaintiff-Appellee, v. Joseph MARINO, Joseph Castello, Pietro Orlando and Mary Alice Williams, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1120

658 F.2d 1120

8 Fed. R. Evid. Serv. 1386

UNITED STATES of America, Plaintiff-Appellee, v. Joseph MARINO, Joseph Castello, Pietro Orlando and Mary Alice Williams, Defendants-Appellants.

Nos. 79-5277, 79-5304, 79-5305 and 79-5278.

United States Court of Appeals Sixth Circuit.

Argued Dec. 15, 1980.

Decided Aug. 31, 1981.

Burton Marks, Los Angeles, Cal., for defendants-appellants in 79-5277 and 79-5305.

James S. Brady, U. S. Atty., Donald A. Davis, Asst. U. S. Atty., Grand Rapids, Mich., for plaintiff-appellee.

Carleen R. Arlidge, San Jose, Cal., for defendants-appellants in 79-5304.

Frederick D. Dilley, Grand Rapids, Mich., for defendants-appellants in 79-5278.

Before BOYCE F. MARTIN, Jr., and JONES, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

NATHANIEL R. JONES, Circuit Judge.

Joseph Marino, Joseph Castello, Pietro Orlando and Mary Alice Williams appeal from their convictions for participating in a conspiracy to import cocaine, ¹ and their convictions on substantive counts stemming from the conspiracy. ² The defendants have

raised many issues which include the following contentions: (1) the district court erred in denying Orlando's motion to suppress evidence of firearms found when he was arrested; (2) the evidence varied from the indictment because the indictment only charged one conspiracy, instead of two; (3) the district court erred in admitting hearsay evidence; (4) the government failed to disclose information it was required to disclose regarding the Witness Protection Program. We affirm the convictions.

FACTS

The defendants were engaged in an ongoing conspiracy to smuggle cocaine into the United States. In 1977 and early 1978, Williams and her sister, "Cat" Peltin, obtained $30,000 from Marino in Miami, Florida with which to purchase cocaine. They traveled to Peru and gave the money to Castello. Williams asked her sister, who had a neuromuscular disorder, to participate as a front for the operation by returning with the cocaine in her wheelchair. After spending a few days at Castello's apartment in Peru, Peltin decided to return to the United States without any cocaine although Williams offered to pay her $2,000 if she continued with the plan.

Later in 1978, Williams again coaxed Peltin into participating in a plan to smuggle cocaine. This time Peltin's home in Grand Rapids, Michigan was to be the delivery site for a furniture shipment from Peru that was filled with cocaine. Castello arranged the furniture shipment. Orlando, Marino and Williams left California to meet the shipment in Grand Rapids.

Cat Peltin's husband, John, became concerned about his wife's involvement in the conspiracy. He contacted agents of the Federal Drug Enforcement Administration (DEA) and revealed the plan to them. In exchange, the Peltins were granted immunity from prosecution and given a monetary award.

DEA agents apprehended Marino, Orlando and Williams as they attempted to leave Peltin's home in a truck loaded with the furniture containing cocaine. The officers seized Marino's briefcase which contained a .25 caliber semi-automatic Colt pistol. They also found maps, airline tickets, customs receipts, Peruvian bank documents and hotel receipts in the defendants' possession. A search of the truck revealed not only cocaine valued at $3.7 million, but Orlando's suitcase which contained a shotgun, a loaded revolver, a derringer, and ammunition.

DEA agents arrested Castello in San Jose, California. They discovered records which proved Castello was in Peru and had phone conversations with the other defendants.

The DEA gave John Peltin a $5,000 reward for his cooperation. In addition, pursuant to the Witness Protection Program, the government granted Peltin assistance of approximately $815 a month for relocation expenses until she found other employment.

ADMISSIBILITY OF THE WEAPONS

Although the government did not charge Orlando with any firearms offense, guns found in his suitcase during a search of the truck were admitted into evidence. Orlando contends that the guns were inadmissible because they were not relevant evidence that he committed the crimes with which he was charged. Fed.R.Evid. 401. In addition, he contends that even if the guns were relevant evidence, they were so prejudicial as to warrant their exclusion under Fed.R.

Evid. 403. We disagree. The guns were relevant to prove Orlando's intent to engage in a conspiracy to import cocaine and any possible prejudice that might have resulted from their admission was cured by the limiting instruction given by the trial judge in accordance with Fed.R.Evid. 404(b).

Under Rule 401, evidence must be relevant to be admissible. In two cases involving guns found in suitcases in close proximity to other contraband, we have held that evidence of the firearms was inadmissible because it was not relevant to the crimes charged. In Brubaker v. United States, 183 F.2d 894 (6th Cir. 1950), we held that "the presence of the revolvers in his suitcase had no bearing whatsoever upon the charge of receiving the stolen car." 183 F.2d at 898. Giordano v. United States, 185 F.2d 524, 525 (6th Cir. 1950) involved a defendant charged with transporting stolen furs. The pistol which was seized was wrapped in its original packing and coated with grease. We held that "the presence of the revolver in the suitcase was of no assistance whatsoever to the jury ...."

However, neither of these cases involved criminal activity of the magnitude with which Orlando is charged. Brubaker was convicted for receiving a stolen car; Giordano was convicted for transporting stolen furs in interstate commerce. The value of the contraband in both cases is miniscule when compared to the $3.7 million worth of cocaine in Orlando's possession. Furthermore, the nature of the crimes is entirely different. As we recognized in United States v. Korman, 614 F.2d 541, 556 (6th Cir.) cert. denied 446 U.S. 952, 100 S.Ct. 2918, 64 L.Ed.2d 808 (1980), "dealers in narcotics are well known to be dangerous criminals usually carrying weapons." In this case, Orlando involved himself in an international conspiracy to smuggle millions of dollars worth of cocaine. Guns could well be the only form of protecting the conspiracy's "assets." Cf., United States v. Wiener, 534 F.2d 15 (2d Cir.), cert. denied 429 U.S. 820, 97 S.Ct. 66, 50 L.Ed.2d 80 (1976) (evidence of a gun found in the defendant's apartment on the day of his arrest for smuggling hashish admissible). As the Court in Wiener stated:

Experience on the trial and appellate benches has taught that substantial dealers in narcotics keep firearms on their premises as tools of the trade almost to the same extent as they keep scales, glassine bags, cutting equipment and other narcotics equipment.

534 F.2d at 18. Similarly, in United States v. Pentado, 463 F.2d 355 (5th Cir. 1972), cert. denied 410 U.S. 909, 93 S.Ct. 963, 35 L.Ed.2d 271 (1973), the district court admitted evidence of guns found in the defendants' possession at their trial for trafficking in heroin. Although this case preceded the Federal Rules of Evidence, the Fifth Circuit's reasoning that the weapons were relevant is still persuasive. The Court reasoned:

It is certainly fair to assume that anyone engaged in a cash transaction of this magnitude would take steps against having the contraband or the purchase money stolen.

463 F.2d at 360. See also, United States v. Cannon, 472 F.2d 144 (9th Cir. 1972); United States v. Kearney, 560 F.2d 1358 (9th Cir.), cert. denied 434 U.S. 971, 98 S.Ct. 522, 54 L.Ed.2d 460 (1977); United States v. Picklesimer, 585 F.2d 1199 (3rd Cir. 1978).

Because the guns tend to prove Orlando's intent to promote and protect the narcotics conspiracy, the evidence of the firearms is relevant and admissible under Rule 401.

Orlando further contends that even if the guns are relevant, they should be excluded under Rule 403 because of their potential for prejudice. Orlando relies on Brubaker and Giordano ³ to support this claim. However, in both of these cases the guns were held to have no relevancy to the In order to protect Orlando from unfair prejudice, the trial court judge gave the following limiting instruction to the jury:

crime charged. Therefore, it was prejudicial error to admit the weapons into evidence. In this case the guns are relevant to the crime charged and should be excluded only if the risk of unfair prejudice outweighs their probative value. Fed.R.Evid. 403.

While the defendant Pietro Orlando is not charged with a violation of any firearms law, the Government has introduced evidence that three firearms and ammunition for two of them were contained in a suitcase claimed by the defendant Pietro Orlando. You should not consider such evidence to prove the character of defendant Orlando in order to show that he acted in conformity therewith. It may, however, be admissible, and is, for other purposes, such as proof of intent, preparation, plan, knowledge, or absence of mistake or accident, and may be considered by you for that reason.

This limiting instruction was consistent with Fed.R.Evid. 404(b) and protects Orlando from negative inferences as to his character. Orlando cites no evidence in the record to support his contention that the guns were introduced to prove his bad character. We hold that this limiting instruction properly protected Orlando from undue prejudice. We agree with the trial judge's finding that the probative value of the evidence outweighed its prejudicial effect. The evidence is admissible under Rule 403.

THE INDICTMENT

Marino and Castello challenge the validity of the indictment because it charged that only one conspiracy existed, rather than two. They claim that the evidence varied from the indictment which failed to adequately apprise them of the charges against them. We hold that only one conspiracy existed; therefore, no error occurred.

Although the evidence shows two separate plans to import cocaine, the major...