U.S. v. Osorio Estrada
| Decision Date | 26 December 1984 |
| Docket Number | No. 377,D,377 |
| Citation | 751 F.2d 128 |
| Parties | 17 Fed. R. Evid. Serv. 443 UNITED STATES of America, Appellee, v. Fernando OSORIO ESTRADA, "a/k/a" "Victor Lnu", Defendant-Appellant. ocket 84-1196. |
| Court | U.S. Court of Appeals — Second Circuit |
Raymond J. Dearie, U.S. Atty., E.D.N.Y., Brooklyn, N.Y. (Lawrence S. Robbins, Asst. U.S. Atty., Brooklyn, N.Y., of counsel, with him on the brief, Allyne R. Ross, Asst. U.S. Atty., Brooklyn, N.Y.), for appellee United States of America.
The Legal Aid Soc., Federal Defender Services Unit (Robin Charlow, Saratoga Springs, N.Y., of counsel), for defendant-appellant.
Before OAKES and KEARSE, Circuit Judges, and POLLACK, Senior District Judge. *
Defendant Fernando Osorio Estrada ("Osorio") appeals from judgments of conviction entered on jury verdicts after a trial in the District Court for the Eastern District of New York. Osorio was convicted of engaging in a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848 (Count 1); conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. Sec. 846 (Count 2); possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) and aiding and abetting the same, 18 U.S.C. Sec. 2 (Counts 3, 4, 5, 8, 9, and 10); conspiracy to import cocaine in violation of 21 U.S.C. Sec. 963 (Count 6); and importation of cocaine in violation of 21 U.S.C. Secs. 952(a) and 960(a)(1) and aiding and abetting the same, 18 U.S.C. Sec. 2 (Count 7).
Osorio was sentenced on each count to concurrent terms of imprisonment, the longest of which was for a term of 15 years on Count 1, the continuing criminal enterprise count. Separate sentences were imposed on the conspiracy counts, Counts 2 and 6, which were treated as lesser included offenses and the sentences thereon merged into the sentence on Count 1. In addition, the court imposed a special lifetime parole term on Counts 3-5 and 7-10.
On appeal, Osorio challenges: (1) the trial court's supplemental instructions to the jury on the counts charging him with aiding and abetting the violations set forth therein; and (2) the admission of evidence that, during the trial, he had tampered with significant dates set out in his passport and the improper and prejudicial manner in which that evidence was introduced. (3) He also contends that in light of his conviction the continuing criminal enterprise count, his convictions on the conspiracy and substantive counts should be treated as lesser included offenses and set aside and not merely merged as to sentence in the sentence under 21 U.S.C. Sec. 848.
We agree with Osorio that the supplemental instruction on aiding and abetting was erroneous and prejudicial, and set aside the convictions on Counts 3, 4, 5, 7, 8, 9, and 10. We also agree that the sentences on Counts 2 and 6 should be vacated; however, the convictions thereon are affirmed and should be joined and combined
with the conviction on Count 1, the sentence on which is also affirmed.
This case involved a large scale narcotics scheme for the importation and distribution of cocaine. Osorio was arrested in September 1983, along with Ana Isabel Goez DeGranobles. Both were charged with narcotics conspiracy, with possession of cocaine with intent to distribute, and with aiding and abetting thereof. In January 1984, DeGranobles pleaded guilty to the charge of possession (Count 10).
At the trial of Osorio, the Government presented its case principally through the testimony of four co-conspirators. It also relied on a ledger kept by Osorio with details of numerous transactions, and on proof that Osorio's fingerprints were found on paper that wrapped a portion of the cocaine. Osorio testified on his own behalf and denied any knowledge of, or participation in narcotics conspiracy, drug dealing, or aiding and abetting thereof. He maintained that the ledger reflected legitimate business transactions, and that he touched the wrapping paper in the presence of police only after he was arrested. The evidence establishing Osorio's guilt was ample.
Osorio had surrendered his passport at the time of his arrest. Thereafter, the Government maintained custody of the document until the first day of trial, when it was given to Osorio to work with while making notes. Only Osorio, his lawyer, and an interpreter had access to it. On its return to the Government, the prosecutor noticed that the passport bore alterations. Two red-stamped dates--relating to times of significant meetings and alleged deals--had been changed with a blue ballpoint pen.
The court received proof that until the trial, there were no alterations of the entries of dates stamped in the passport. A Government agent testified that while the passport was in his possession, he had not made or seen the alterations and had not observed anyone in the U.S. Attorney's office make them. The theory of the evidence was that it reflected consciousness of guilt: i.e., that Osorio altered the dates in order to conceal his whereabouts at times when illegal transactions were discussed or took place.
The prosecutor was permitted to circulate the passport to the jury, with the Court's instruction that "The purpose is to see the blue ink superimposed over the red stamp." In the jury's presence, the prosecutor then asked defense counsel to stipulate that he did not make the marks himself. Defense counsel denied any part in the changes and objected strongly to being asked to make any statement in the presence of the jury. The Court interjected: "Let the record reflect [that defense counsel] states that he did not do it [make the alterations]." A similar stipulation was requested in the presence of the jury concerning the interpreter and again there was elicited a denial by counsel of any alteration by the interpreter.
On cross examination, Osorio firmly denied altering his passport and freely admitted that he was in the United States on the dates indicated by the original, unaltered red entry stamps.
On Counts 3-5 and 7-10, Osorio was charged both as a principal and as an aider and abettor of two individuals who were named in the indictment but were not on trial with Osorio (i.e., one "Trejos" in Counts 3-5, and DeGranobles in Counts 7-10). In its main charge on the Counts, the trial court properly instructed the jury on the elements of aiding and abetting liability; the correctness of these instructions is not challenged.
During the second day of deliberations, the jurors sent a note to the Court, inquiring whether they were required to vote on Osorio alone or must also consider the culpability of the absent co-defendant. After colloquy among the Court and counsel the judge charged as follows:
To find Osorio Estrada the only defendant guilty you must be satisfied as to But obviously you have to consider Trejos as you would any other piece of evidence in the case but you don't have to be satisfied of Trejos' guilt beyond a reasonable doubt since he is not a defendant.
[the elements] beyond a reasonable doubt. [The indictment] charges that he did this together with Trejos but he is not here and is not a defendant.
Your vote is only on the defendant Fernando Osorio Estrada.
The following colloquy then occurred out of the presence of the jury:
MR. SUSSMAN [Defense Counsel]: Yes, but when you say they don't have to be persuaded beyond a reasonable doubt if they don't find that how can they find him guilty?
THE COURT: They can find Trejos guilty by a preponderance of the evidence. (Emphasis added).
The trial judge properly overruled the objection to and admitted the evidence clearly linking the defendant to the changes of dates in his passport during the time period when the tampering took place. We would overturn a trial judge's decision under Fed.R.Evid. 403 only if the judge had acted arbitrarily or irrationally, see United States v. Jamil, 707 F.2d 638, 642 (2d Cir.1983), and in fact we have cautioned trial judges to be sparing in omitting relevant evidence as too prejudicial, id. Here, the evidence was strong that the passport was altered while in the custody of the defense, and it was clear that, at least for a time, both the passport and a pen were simultaneously in the defendant's hands.
It was improper--and conceded to be so on argument--for the prosecutor to seek to force defense counsel to deny in the jury's presence that he or the interpreter had any part in the tampering. To permit this was erroneous, particularly because it increased the strength of the inference that Osorio had altered the passport. This error and its apparent effect of creating a conflict of interest does not, however, in the totality of the evidence in this case, rise to the level of a Sixth Amendment violation. The cases relied on by the appellant holding that an attorney's "concern over getting ... into trouble with criminal law enforcement authorities" is an impermissible conflict, United States v. Cancilla, 725 F.2d 867, 870 (2d Cir.1984), all concern attorneys who have committed crimes or who are under investigation for crimes. See id. at 871 and cases cited therein.
Osorio contends, quite correctly, that an aider and abettor may not be convicted unless the proof establishes that the underlying offense was committed by someone beyond a reasonable doubt. United States v. Perry, 643 F.2d 38, 45-6 (2d Cir.), cert. denied, 454 U.S. 835, 102 S.Ct. 138, 70 L.Ed.2d 115 (1981); United States v. Ruffin, 613 F.2d 408, 412-13 (2d Cir.1979). Here, the supplemental instructions erroneously implied that the jury could convict Osorio of aiding and abetting if it found the principal guilty by only a preponderance of the evidence. The error was immediately called to the court's attention and the court declined to correct it.
Given the possible...
To continue reading
Request your trial
-
State v. Johnson
...in Rawls, and it adopted the reasoning of the United States Court ofAppeals for the Second Circuit in United States v. Osorio Estrada, 751 F.2d 128, 134-35 (2d Cir. 1984), cert. denied, 474 U.S. 830,106 S. Ct. 97, 88 L. Ed. 2d 79 (1985), and United States v. Aiello, 771 F.2d 621, 634-35 (2d......
-
US v. Fuentes
...do not unjustifiably escape punishment. At least two other circuits have also adopted this compromise. See United States v. Osorio Estrada, 751 F.2d 128, 134-35 (2d Cir.), cert. denied, 474 U.S. 830, 106 S.Ct. 97, 88 L.Ed.2d 79 (1985); United States v. Gomberg, 715 F.2d 843, 851-52 (3d Cir.......
-
U.S. v. Miller
...courts to "combine" the "conviction[ ] on the lesser offense[ ] ... with the conviction on the greater offense," United States v. Osorio Estrada, 751 F.2d 128, 135 (2d Cir.1984), modified on reh'g on other grounds, 757 F.2d 27 (2d Cir.), cert. denied, 474 U.S. 830, 106 S.Ct. 97, 88 L.Ed.2d ......
-
U.S. v. Moya-Gomez
...could be punished for the lesser offenses. United States v. Aiello, 771 F.2d 621, 632 (2d Cir.1985) (quoting United States v. Osorio Estrada, 751 F.2d 128, 135 (2d Cir.1984), modified on other grounds, 757 F.2d 27 (2d Cir.), cert. denied, 474 U.S. 830, 106 S.Ct. 97, 88 L.Ed.2d 79 45 In this......