U.S. v. Obergon, 88-5396

• Decision Date: 09 February 1990
• Docket Number: No. 88-5396,88-5396
• Citation: 893 F.2d 1307
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ralph Jeff OBREGON, Julio Isaac Padron, Nelson Alberto Vasquez, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1307

893 F.2d 1307

UNITED STATES of America, Plaintiff-Appellee, v. Ralph Jeff OBREGON, Julio Isaac Padron, Nelson Alberto Vasquez, Defendants-Appellants.

No. 88-5396.

United States Court of Appeals Eleventh Circuit.

Feb. 9, 1990.

Theodore J. Sakowitz, Federal Public Defender, and Stewart G. Abrams, Asst. Federal Public Defender, Miami, Fla., for Ralph Jeff Obregon.

Fred Schwartz and Raoul G. Cantero, III, Miami, Fla., for Nelson Alberto Vasquez.

Alvin E. Entin, Miami, Fla., for Julio Isaac Pardon.

Bruce C. Udolf, Mayra R. Lichter, and Linda C. Hertz, Asst. U.S. Attys., and Dexter W. Lehtinen, U.S. Atty., Miami Fla., for the U.S.

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

Before HATCHETT and EDMONDSON Circuit Judges, and DYER, Senior Circuit Judge.

HATCHETT, Circuit Judge:

In this appeal, we affirm the district court's rulings on sufficiency of the evidence, prosecutorial misconduct, and the validity of the search warrant.

FACTS

On May 13, 1987, a boarding party from the Coast Guard Cutter CAPEGULL boarded a forty-four foot vessel, the JANNIELL, which was anchored, without lights, in the vicinity of Nassau, Bahamas. The boarding party conducted a "space accountability search" to determine if the vessel contained On May 21, 1987, Federal Bureau of Investigation (FBI) agents obtained a search warrant for the JANNIELL, which was located at the Rickenbacker Marina in Key Biscayne, Florida. The FBI agents searched the vessel and found a concealed compartment in each of the JANNIELL's fuel tanks. The right tank concealed compartment contained 282 kilograms of cocaine, and the left tank compartment contained 331 kilograms of cocaine.

                any hidden compartments.  The vessel appeared to have been altered because an exhaust tube led to the center of the vessel, instead of straight back from the engines to the outboard parts.  During the search, the boarding party checked the gas tanks by using sounding tape to determine if they contained any hidden compartments. 1   Finding no hidden compartments or unaccounted for space, the Coast Guard officer filled out a "boarding report" which listed the names of the passengers, including Obregon, Padron, and Vasquez ("appellants")
                

In addition to cocaine, the FBI agents found the following items: a navigational chart for the Bahamas; a yachtsman's guide to the Bahamas; an invoice to Vasquez from Manatee Bay Marina in the amount of $1,176 for work and docking fees; an invoice dated June 15 to Vasquez from Manatee Marina in the amount of $1,930 for the vessel HONEYBEAR with the identification number FL0473; a receipt dated August 31 to Vasquez in the amount of $239 for storage of the vessel; Florida registration certificate dated August 26, 1986, indicating that vessel number FL0473 was registered to John M. Haggerty; and a copy of the Coast Guard boarding report. ²

Until the FBI agents discovered the Coast Guard boarding report, they were unaware that Coast Guard personnel had boarded the vessel. After verifying the boarding, the FBI agents obtained the fingerprints of Padron and Vasquez from information obtained from the Coast Guard. The fingerprints matched fingerprints lifted from the packages of seized cocaine. The FBI also obtained a birth certificate which revealed that Vasquez's daughter's name was Janniell.

PROCEDURAL HISTORY

On December 22, 1987, a federal grand jury indicted Padron, Obregon, Vasquez, and Espinosa, for conspiracy to import at least five kilograms of cocaine in violation of 21 U.S.C. Sec. 963 (Count I); conspiracy to possess with intent to distribute at least five kilograms of cocaine in violation of 21 U.S.C. Sec. 846 (Count II); possession with intent to distribute at least five kilograms of cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2 (Count III); and importation of at least five kilograms of cocaine (Count IV). Espinosa pleaded guilty and is not in this appeal. Padron and Vasquez moved to suppress the evidence seized from the JANNIELL. Obregon, Padron, and Vasquez filed a motion for judgment of acquittal on all four counts. The district court denied the motion on Counts I, II, and III, but granted the motion on Count IV.

The district court sentenced Obregon to three concurrent terms of fifteen years imprisonment for Counts I, II, and III, plus five years of supervised release as to Count III, following the period of confinement. Padron and Vasquez filed a motion for a new trial and a stay of sentencing, asserting that the confidential informant mentioned in the affidavit supporting the search warrant did not exist and was merely a fictional character through which the FBI agent misled the magistrate in the issuance of the search warrant. After conducting an evidentiary hearing, a United

States Magistrate recommended that the district court deny the motion for a new trial. The district court adopted the magistrate's report, and sentenced Padron and Vasquez to three concurrent terms of fifteen years of imprisonment for Counts I, II, and III, followed by five years of supervised release on Count III.

CONTENTIONS

Padron and Vasquez contend that the district court erred in denying their motion for a mistrial based on prosecutorial misconduct. They also contend that the government presented insufficient evidence to convict them on Count I, and the district court erred in denying their motion for a new trial. Obregon contends that the government presented insufficient evidence to convict him on all three counts.

The government contends that the prosecutor's statements were proper and did not unfairly prejudice the appellants, that the affidavit supporting the search warrant was not false or misleading, and that the evidence was sufficient.

ISSUES

The issues are: (1) whether the district court erred in denying Padron's and Vasquez's motion for a mistrial; (2) whether sufficient evidence existed to convict Obregon, Padron, and Vasquez; and (3) whether the district court erred in failing to grant Padron's and Vasquez's motion for a new trial on the basis of newly discovered evidence.

DISCUSSION

A. Prosecutorial Misconduct

Vasquez and Padron contend that they were unfairly prejudiced by statements the prosecutor made during opening argument which could only be elicited from witnesses the government had no intention to call to testify. Specifically, they object to the following statements: (1) the Coast Guard was on the "lookout" for the JANNIELL at the time they boarded the vessel; and (2) the JANNIELL was subjected to a space accountability search.

In order to succeed on a claim of prosecutorial misconduct, we apply a two-part test. We determine whether the challenged statements were improper, and if so, whether they prejudicially affected the appellants' substantial rights. See United States v. Walther, 867 F.2d 1334, 1341 (11th Cir.), cert. denied --- U.S. ----, 110 S.Ct. 144, 107 L.Ed.2d 103 (1989); United States v. Lacayo, 758 F.2d 1559, 1565 (11th Cir.), cert. denied, 474 U.S. 1019, 106 S.Ct. 568, 88 L.Ed.2d 553 (1985). In United States v. Sawyer, 799 F.2d 1494 (11th Cir.1986), cert. denied, 479 U.S. 1069, 107 S.Ct. 961, 93 L.Ed.2d 1009 (1987), this court condemned the practice whereby a prosecutor refers to testimony in the opening statement which is never introduced at trial. In Sawyer, the prosecutor informed the jury that: "You will hear evidence that Steven Sawyer told a representative of the CFTC in 1982, that Steven Sawyer was guilty." Sawyer, 799 F.2d at 1507. In spite of this promise, the prosecutor did not introduce the confession or evidence that the statements were made in 1982.

In this case, the government does not contest the fact that the prosecutor referred to testimony which he had no intention of presenting at trial. But even if we agree with Padron and Vasquez that the statements were improper, we disagree with the contention that the statements were unfairly prejudicial.

A prosecutor's statement will justify the reversal of a conviction if it undermined "the fairness of the trial and contributed to a miscarriage of justice." Sawyer, 799 F.2d at 1507. In determining whether to reverse a conviction based on improper statements, we must review the claim against the entire record. See United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (quoting United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 1592, 14, 71 L.Ed.2d 816 (1982)). "[E]ach case necessarily turns on its own facts." United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 240, 60 S.Ct. 811, 852, 84 L.Ed. 1129 (1940). Our review of this record leads us to conclude that the First, we note that the district court gave cautionary instructions when charging the jury. See Sawyer, 799 F.2d at 1507 (the court concluded that repeated cautionary instructions cured any prejudice resulting from improper remarks). Second, the prosecutor refrained from repeating the improper statements or from mentioning them during closing argument. See United States v. De La Luz Gallegos, 738 F.2d 378, 383 (10th Cir.), cert. denied, 469 U.S. 1076, 105 S.Ct. 574, 83 L.Ed.2d 514 (1984) (prosecutor's improper comments in opening statement held harmless where the matter was never brought up again by the prosecutor or mentioned in closing arguments). Most importantly, we conclude that independent evidence, not connected to the statements, in this case established guilt. Both Padron and Vasquez were aboard the JANNIELL near Nassau, Bahamas, a known drug smuggling area, approximately one week before the FBI agents recovered cocaine from the secret compartments in the vessel's fuel tanks. Vasquez, an authorized user of the vessel, had a daughter with the same name as the vessel. Padron's and Vasquez's fingerprints were found on the packages of cocaine. Finally, the government presented expert testimony indicating that the fingerprints were placed on the packages after the drugs were...