U.S. v. Padilla

• Decision Date: 23 February 1989
• Docket Number: 87-2457,Nos. 87-2434,87-2435,88-1996 and 88-1997,88-1937,s. 87-2434
• Citation: 869 F.2d 372
• Parties: UNITED STATES of America, Appellee, v. Armando PADILLA, Appellant. UNITED STATES of America, Appellee, v. William CHIPPAS, Appellant. UNITED STATES of America, Appellee, v. James PERCHEITTE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 372

869 F.2d 372

UNITED STATES of America, Appellee, v. Armando PADILLA, Appellant.

UNITED STATES of America, Appellee, v. William CHIPPAS, Appellant.

UNITED STATES of America, Appellee, v. James PERCHEITTE, Appellant.

Nos. 87-2434, 87-2435, 87-2457, 88-1937, 88-1996 and 88-1997.

United States Court of Appeals Eighth Circuit.

Feb. 23, 1989.

William E. Taylor, St. Louis, Mo., for Chippas.

Robert Ramsey, Clayton, Mo., for Padilla.

Suzanne Philbrick, Oak Lawn, Ill., for Percheitte.

Mitchell F. Stevens, Asst. U.S. Atty., St. Louis, Mo., for U.S.

Before ARNOLD and JOHN R. GIBSON, Circuit Judges, and ROSENBAUM, ^* District Judge.

ARNOLD, Circuit Judge.

Armando Padilla, William Chippas, and James Percheitte bring this appeal from their convictions and sentences under the federal narcotics statutes. Each defendant was indicted for distribution of cocaine in violation of 21 U.S.C. Sec. 841(a)(1), and conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. Sec. 846. After a week-long trial, the jury found each of the defendants guilty on both counts of the indictment. We affirm these convictions in all respects.

In sentencing the defendants, the District Court gave effect to a jury finding concerning the weight of the cocaine sold by the defendants, and enhanced their sentences under 21 U.S.C. Sec. 841(b)(1)(A). The District Court also added a five-year term of supervised release subsequent to the enhanced sentences imposed on each defendant. We conclude that the District Court erred in failing to make its own findings on an issue material to the enhancement of defendants' sentences, and that the statute authorizing a term of supervised release in place of a special parole term had not taken effect at the time of the defendants' unlawful acts. Accordingly, we vacate the defendants' sentences and remand for resentencing.

I.

Because the jury found the defendants guilty on all counts, we recount the evidence presented at trial in the light most favorable to the prosecution. This case involves a conspiracy among Padilla, Percheitte, and Chippas to transport five kilograms of cocaine from Florida to St. Louis, where it would be sold for $155,000. The defendants were unaware that their prospective buyer, David Lorino, was a special agent for the Drug Enforcement Administration (DEA). Lorino's testimony subsequently became the central evidence for the prosecution's case.

Agent Lorino testified that he met with John Lett, an old acquaintance of William Chippas, in December 1986 in Miami. Lett had been convicted on federal narcotics charges several years earlier, and was used by the DEA as an informant who knew of individuals smuggling large quantities of cocaine from Colombia into the United States. Lett's function, in this and other cases, was to introduce cocaine traffickers he knew to undercover DEA agents posing as buyers. As of December 1986, Lett had become a Canadian resident, and was allowed into the United States for a specified period through a special arrangement between Canadian authorities, the Immigration and Naturalization Service, and the DEA. Lett received $5,500 in reward money from the DEA, plus air fare and hotel expenses, for his cooperation in this investigation.

According to Agent Lorino, William Chippas had contacted Lett about selling cocaine, and Lett relayed this information to Lorino. Lett then arranged a meeting between Agent Lorino and Chippas on the morning of March 1st, 1987, in a pancake house in Plantation, Florida.

At this meeting, Lett introduced Agent Lorino to Chippas as "Tony Rizzo." In his undercover identity as "Tony Rizzo," Agent Lorino posed as a resident of St. Louis, originally from Staten Island, with ties to the New York heroin trafficking group known as the "Pizza Connection." Agent Lorino told Chippas that he was interested in buying 25 kilograms of cocaine delivered to St. Louis. Chippas responded that he could deliver 89% pure cocaine at $31,000 per kilogram to Lorino in St. Louis. Chippas told Agent Lorino that if Chippas were ever arrested, he would never turn his source in for fear of being killed. Chippas and Agent Lorino agreed that Chippas would fly to St. Louis the day before the transaction to view the purchase money, at which point Chippas would call Florida and arrange to have the cocaine driven to St. Louis. According to Lorino, John Lett remained silent during the negotiation between Chippas and Lorino in the pancake house, and was not involved in the discussion after making the initial introduction.

After the Florida meeting, Agent Lorino and Chippas agreed over the telephone that the deal would involve only 5 kilograms of cocaine for $155,000, since Chippas indicated that his source did not want to send more to St. Louis without viewing the purchase money in Florida. Chippas drove to St. Louis, arriving on March 18, 1987. He told Lorino that he decided not to fly because he needed to drive through Georgia to sell two bales of marijuana to the Ku Klux Klan. Chippas was taken to a room at the Hilton Hotel, where agent Lorino showed him a suitcase containing the agreed amount of $155,000. After viewing the money, Chippas remarked to Lorino that if he (Lorino) was a police officer, John Lett, Chippas, and Lorino would all be killed. Chippas then went to a pay phone where, in Lorino's presence, he placed a long-distance phone call to a number listed in Chippas's phone book as belong to "James." A few minutes later, Chippas received a return call, and told the caller, "hi, how are you, come on up."

Three days later, on March 21, 1987, Chippas told Lorino that his source had arrived. Chippas described his source as a man named "Jimmy" who worked in the portable toilet business. Chippas then took Lorino to the Henry VIII Hotel, where they met James Percheitte. After consulting with Percheitte, Chippas told Lorino that the cocaine would be delivered in a spare tire at a nearby Shell station once the purchase money was delivered to Percheitte in Room 1097 of the Henry VIII Hotel. After Lorino objected to turning over the money before obtaining the cocaine, a compromise was reached whereby Percheitte would remain inside Room 1097 with the $155,000, while an associate of Lorino's, whose real identity was Detective Sam Simon, stood outside the room.

Chippas then called the Park Terrace Hilton Hotel where Armando Padilla was registered. Chippas and Lorino proceeded to the nearby Shell station, where Armando Padilla drove up soon afterward. Padilla shook hands with Chippas, opened the trunk of his car, took out a spare tire, and placed the spare tire in Lorino's trunk. At this point, Chippas and Padilla were arrested. When Detective Simon, posted outside Room 1097, learned that Chippas and Padilla had been arrested, he and other agents immediately entered the room with a hotel security guard's passkey. Simon then placed Percheitte under arrest.

Chippas and Padilla took the stand in their own defense at trial. Chippas claimed that he was entrapped by John Lett. Chippas testified that Lett owed him money, and promised to repay the debt by supplying Chippas with cocaine to sell to Lorino. Padilla testified that he drove to St. Louis to sell his automobile to John Lett, that he knew nothing about a cocaine transaction, and that he was unaware that the spare tire of his car contained cocaine.

II.

On appeal, Chippas urges us to reverse his conviction because the government failed to produce John Lett as a witness. Chippas's defense theory was that Lett, a paid government agent, entrapped him by initiating the deal with Lorino, and supplying the cocaine which Chippas sold to Lorino. According to Chippas, Lett was the major player in the sale, while Chippas participated only as Lett's stand-in, acting on Lett's instructions. The government failed to produce Lett for deposition in response to Chippas's pre-trial discovery motions, and Lett was not present at the trial. Chippas claims that Lett's absence denied him a fair trial, a conclusion the District Court rejected in denying Chippas's various motions to compel production, for a judgment of acquittal, and for a new trial.

Chippas derives his argument for reversal from the principle defined in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), that "[w]here the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege [of confidential information] must give way." Id. at 60-61, 77 S.Ct. 627-28. Our Court has applied Roviaro to impose a duty on the government "to make every reasonable effort to have [an informant shown to be a material witness] made available to the defendant to interview or use as a witness ..." United States v. Barnes, 486 F.2d 776, 779-80 (8th Cir.1973). In this case, of course, Chippas has known the identity of the government informant all along--he has known Lett for over twenty years. Normally, Chippas's power to subpoena Lett under Fed.R.Crim.P. 17 would make any further effort on the government's part unnecessary. Here, however, special problems associated with locating and protecting informants arise. It is doubtful from the record whether Chippas could have located Lett directly for service of a subpoena. ¹ Furthermore, even if Chippas could have obtained Lett's address, it appears from the record that Lett is a Canadian subject, for whom a subpoena issued under Fed.R.Crim.P. 17(e)(2) would have no force. See 28 U.S.C. Sec. 1783; Wright, Federal Practice and Procedure, (Criminal) Sec. 277. Under the circumstances, Chippas clearly lacked the power to bring John Lett into court.

It appears from the record that the government had this power. Agent Lorino testified at the suppression hearing that Lett had served as informant on other occasions, that Lorino was the principal American government...