U.S. v. Ovalle-Marquez

• Decision Date: 11 March 1994
• Docket Number: RIVERA-SANTIAG,OVALLE-MARQUE,D,Nos. 93-1221,93-1458,s. 93-1221
• Citation: 36 F.3d 212
• Parties: UNITED STATES, Appellee, v. Luis E.efendant-Appellant. UNITED STATES, Appellee, v. Miguel A.efendant-Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 212

36 F.3d 212

UNITED STATES, Appellee, v. Luis E. OVALLE-MARQUEZ, Defendant-Appellant.

UNITED STATES, Appellee, v. Miguel A. RIVERA-SANTIAGO, Defendant-Appellant.

Nos. 93-1221, 93-1458.

United States Court of Appeals, First Circuit.

Heard March 11, 1994.

Decided Sept. 29, 1994.

Beverly P. Myrberg, Miami, FL, for appellant Luis E. Ovalle-Marquez.

H. Manuel Hernandez, Longwood, FL, by Appointment of the Court, for appellant Miguel A. Rivera-Santiago.

Jose A. Quiles-Espinosa, Sr. Litigation Counsel, Hato Rey, PR, with whom Guillermo Gil, U.S. Atty., Washington, DC, was on brief for appellee.

Before TORRUELLA, Circuit Judge, CAMPBELL, Senior District Judge, and CARTER, ^* District Judge.

TORRUELLA, Circuit Judge.

A grand jury returned a seven-count indictment charging nine defendants, including appellants Luis Enrique Ovalle-Marquez ("Ovalle") and Miguel A. Rivera-Santiago ("Rivera"), with offenses related to the importation of cocaine, and possession of cocaine with the intent to distribute. A trial was held and the jury returned guilty verdicts against Ovalle and Rivera on four of the counts. Pursuant to the applicable sentencing guidelines, the district court then sentenced both Ovalle and Rivera to terms of life imprisonment. Ovalle and Rivera now appeal, challenging both their convictions and their sentences on a variety of grounds. We affirm.

I. BACKGROUND

A. Facts

The testimony and other evidence properly introduced at trial, viewed in the light most favorable to the verdicts, established the following facts. See United States v. Rivera-Santiago, 872 F.2d 1073, 1078-79 (1st Cir.), cert. denied, 492 U.S. 910, 109 S.Ct. 3227, 106 L.Ed.2d 576 (1989).

A paid government confidential informant, Willie Linder, alerted special agents of the Drug Enforcement Administration ("DEA") to a drug trafficking operation in the Lajas/Cabo Rojo area of Puerto Rico. Linder, a German citizen, is a fisherman who has lived in Puerto Rico since 1960.

On November 27, 1991, Linder met with Ovalle, Rivera, co-defendants Sergio Monteagudo-Martinez ("Monteagudo"), and Humberto Artunduaga-Alvarado in Las Cuebas, Puerto Rico. (Monteagudo entered into a plea agreement with the government and testified for the prosecution). At this meeting, these individuals planned to import approximately 800 kilograms of cocaine (approximately 22 bales), which was to be first airdropped in waters off the coast of the Dominican Republic, and then brought into Puerto Rico. The meeting's participants planned to use two vessels--Linder would captain his own boat, and Monteagudo would captain the other boat. These vessels would depart from Puerto Rico for a location off the coast of Punta Espada, Dominican Republic, where, with the help of some other people unknown to them, they would load the cocaine onto the vessels. Tentatively, they scheduled the smuggling venture for sometime between December 8-13, 1991.

On November 29, 1991, Ovalle and Artunduaga delivered $1000 to Linder for the purpose of enabling Linder to repair his boat. Thereafter, and up until December 9, Ovalle and Artunduaga sporadically met with Linder to inquire about the status of the repairs to his boat, and to provide Linder with additional money to complete the repairs.

Rivera apparently became suspicious of Linder, and the defendants did not then include Linder in the smuggling operation planned for early December. On or about December 7, 1991, Ovalle, Rivera and Monteagudo, as well as others, met to finalize the plans for the smuggling operation, without Linder's help. At this December 7 meeting, Rivera gave Monteagudo two firearms, a .38 caliber revolver and a .22 caliber pistol. Ovalle loaded the firearms for Monteagudo.

On December 9, 1991, Monteagudo, co-defendant Santos Victor Chala-Ramos ("Chala"), and two other men from the Dominican Republic, picked up 21 bales, containing approximately 800 kilograms of cocaine, off the coast of Santo Domingo, Dominican Republic, after giving a pre-arranged signal to a plane flying nearby. Because one of the boats that Monteagudo had planned to use to pick up the cocaine was damaged, he decided to take one boat with 11 bales of cocaine, and leave 10 bales of cocaine hidden on a nearby beach, guarded by the two man crew of the damaged boat.

On December 11, 1991, Monteagudo proceeded to import 11 of the 21 bales of cocaine into Puerto Rico. Unknown persons, however, began to pursue Monteagudo's boat, and Monteagudo and the other Dominican man on board (known to Monteagudo as "Queque"), threw seven bales into the water in an attempt to halt the pursuit and minimize the loss of the entire load. Monteagudo eventually delivered the remaining four bales to Ovalle and Rivera.

The defendants then arranged to import the rest of the cocaine that had been left behind in the Dominican Republic. On December 12, Ovalle and Rivera met with Linder to survey areas, including Playita Rosada in La Parguera, Puerto Rico for possible landing sites to import the additional cocaine.

On December 13, Ovalle, Rivera and Artunduaga met with Linder at his home to obtain his help in importing the other ten bales of cocaine. Linder was instructed to meet with Ovalle in Ponce for further instructions. Linder then met with Ovalle and another man as arranged. The men then went to Rivera's home, where Linder left his car, and Rivera, Ovalle, Linder and the other man then proceeded to a pier in Ponce. Monteagudo met them there, and Monteagudo and Linder then departed in a boat for Lajas, Puerto Rico. Sometime during the day, Linder contacted DEA agents and advised them of the planned venture.

On December 14, Monteagudo and Linder departed Puerto Rico to a rendezvous point near Saona, Dominican Republic, where they were assisted by several Dominican men in the loading of the remaining ten bales of cocaine (372 kilograms). On the following day, Monteagudo and Linder returned to Playita Rosada, where DEA agents seized the cocaine and arrested Monteagudo. DEA agents subsequently arrested Ovalle and Rivera.

B. Procedural Background

On June 3, 1992, a grand jury returned a second superseding seven count indictment against Ovalle and Rivera, and seven other defendants. Counts One and Two of the indictment charged the defendants with conspiring to import, and possess with the intent to distribute, approximately 800 kilograms of cocaine from November 27 to December 17, 1991, in violation of 21 U.S.C. Secs. 841(a)(1), 846, 952(a) and 963. Count Three charged the defendants with aiding and abetting the importation of approximately 418 kilograms of cocaine on December 11, 1991 in violation of 21 U.S.C. Sec. 952(a) and 18 U.S.C. Sec. 2. Count Four charged the defendants with aiding and abetting the possession with intent to distribute approximately 150 kilograms of cocaine on December 11, 1991, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. Counts Five and Six charged the defendants with aiding and abetting the importation, and possession with intent to distribute, 372 kilograms of cocaine on December 15, 1991, in violation of 21 U.S.C. Sec. 841(a)(1) and 952(a), and 18 U.S.C. Sec. 2. Count Seven charged the defendants with aiding and abetting the use and carrying of firearms in relation to a drug offense, in violation of 18 U.S.C. Sec. 924(c)(1).

The trial commenced on August 25, 1992, and the jury returned guilty verdicts against Ovalle and Rivera on Counts One, Two, Five and Six. The jury acquitted all of the defendants, including Ovalle and Rivera, of the charges in Counts Three, Four and Seven.

On January 22, 1993, the court held a sentencing hearing and determined that Ovalle's total offense level was 46, and that his Criminal History Category was I, therefore making his guideline sentencing range life imprisonment. The court then sentenced Ovalle to four concurrent sentences of life imprisonment.

At a sentencing hearing on April 2, 1993, the court determined that Rivera's total offense level was 47, and that his Criminal History Category was I, which also mandated a sentencing guideline range of life imprisonment. The court then sentenced Rivera to four concurrent sentences of life imprisonment.

Rivera and Ovalle now allege a number of grounds to challenge both their convictions and sentences.

II. DID THE DISTRICT COURT IMPROPERLY LIMIT

CROSS-EXAMINATION?

Rivera contends that the district court improperly limited his counsel's cross-examination of two government witnesses, and that this denied Rivera his Sixth Amendment right to confront adverse witnesses. The Confrontation Clause of the Sixth Amendment guarantees an accused in a criminal proceeding the right "to be confronted with the witnesses against him." U.S. Const. amend. VI; Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S.Ct. 1431, 1434, 89 L.Ed.2d 674 (1986); United States v. Alvarez, 987 F.2d 77, 82 (1st Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 147, 126 L.Ed.2d 109 (1993). The Confrontation Clause secures an accused the right to cross-examine adverse witnesses in order to test "the believability of a witness and the truth of his testimony." United States v. Carty, 993 F.2d 1005, 1009 (1st Cir.1993) (quoting Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974)); Alvarez, 987 F.2d at 82 (citations omitted). The right to cross-examine an adverse witness, however, is not unlimited. United States v. Corgain, 5 F.3d 5, 8 (1st Cir.1993); Carty, 993 F.2d at 1009; Alvarez, 987 F.2d at 82.

[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.

Van Arsdall, 475 U.S. at 679, 106 S.Ct. at 1435; see also Carty, 993 F.2d at 1010; Alvarez, 987 F.2d at 82; United States v. Moore, 923 F.2d 910, 913 ...