U.S. v. Paulino

Decision Date03 June 1991
Docket NumberNos. 90-5090,s. 90-5090
Citation935 F.2d 739
Parties33 Fed. R. Evid. Serv. 488 UNITED STATES of America, Plaintiff-Appellee, v. Juan Leonardo PAULINO (90-5090); Ada Fernandez, a/k/a Ada Paulino (90-5094); Edward Chazulle (90-5091); Alex Vieyra (90-5092); Juan Carlos Paulino, a/k/a John Wilson, a/k/a Edward Sanchez (90-5093), Defendants-Appellants, Gary Helton, Steve Pierre, Samuel Torres, Defendants. to 90-5094.
CourtU.S. Court of Appeals — Sixth Circuit

Louis DeFalaise, U.S. Atty., Jane E. Graham, Asst. U.S. Atty. (argued), Lexington, Ky., for plaintiff-appellee.

Juan Paulino, pro se.

C. William Swinford, Jr. (argued), Todd, Walter & Cox, Lexington, Ky., for Juan Leonardo Paulino.

Billie J. Davenport (argued), Lexington, Ky., for Edward Chazulle.

Donald D. Waggener (argued), Lexington, Ky., for Alex Vieyra.

David R. Marshall (argued), Lexington, Ky., for Juan Carlos Paulino.

Andrew M. Stephens (argued), Lexington, Ky., for Ada Fernandez.

Before NELSON and SUHRHEINRICH, Circuit Judges, and WELLFORD, Senior Circuit Judge.

SUHRHEINRICH, Circuit Judge.

Defendants appeal their convictions on charges of conspiring to possess and distribute cocaine in violation of 21 U.S.C. Sec. 846, and possessing with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1). Defendant Juan Leonardo Paulino also challenges his conviction for conducting a continuing criminal enterprise with respect to violations of 21 U.S.C. Secs. 841(a)(1) and 846, in violation of 21 U.S.C. Sec. 848; and his conviction on two counts of evading taxes, in violation of 26 U.S.C. Sec. 7201.

FACTUAL BACKGROUND

This case involves a scheme to transport cocaine from Miami, Florida for distribution in Lexington, Kentucky. After moving from Miami to Lexington sometime in 1986, the defendants began transporting or "muling" cocaine. Two or three members would travel by rental car to Miami where Defendant Edward Chazulle transported cocaine for Leonardo Paulino from 1987 until his arrest in Georgia in April of 1988 for possessing 1 1/2 kilograms of cocaine. The vehicle Chazulle was driving at the time was registered in the name of Leonardo Paulino. Chazulle's driver's license reflected an address associated with Leonardo Paulino. In November of 1987, defendant Alex Vieyra also started transporting cocaine from Miami to Lexington for Leonardo Paulino. Vieyra was arrested some four months following his indictment.

defendant Juan Leonardo Paulino ("Leonardo Paulino") would purchase cocaine from a garage in northwest Miami. He would then buy an Igloo cooler, remove its lining, carve out the foam at the bottom of the cooler, place the cocaine in this space, and then fill the cooler with sandwiches and drinks to disguise its contents. Another member of the conspiracy would return with the cooler to Lexington by bus, where the cocaine would then be delivered to Leonardo Paulino at either a motel or an apartment to be prepared for distribution. The cocaine would be cut with inositol and acetone and bagged in ounce quantities for the street selling, and/or sold in bulk to other dealers.

After Chazulle's arrest, Leonardo Paulino enlisted the help of former co-defendant and government witness Samuel Torres. Torres testified that he made approximately six trips between May or June of 1988 and March of 1989 from Miami to Lexington. Torres' testimony reflected that each trip substantially followed the pattern described above. Torres also testified that the proceeds from the drug sales were typically wired to Miami using Western Union money orders and that defendant Ada Fernandez was the customary recipient, using her own name and others. Torres described Fernandez as the person responsible for handling the money and doing the banking.

In September of 1988, defendant Juan Carlos Paulino ("Carlos Paulino"), who had just been released from jail, joined the drug trafficking venture. On March 9, 1989, Torres and Carlos Paulino made a drug run, returning from Miami via bus and carrying the cocaine hidden in a cooler. As will be described below, they were arrested shortly after arriving in Lexington. The testimony at trial established that Torres alone was responsible for transporting at least 3 3/4 kilograms of cocaine from Miami to Lexington on behalf of Leonardo Paulino, and that Carlos Paulino was responsible for transporting between 3/4 of a kilogram of cocaine and 1 3/4 kilograms of cocaine.

Other government witnesses included Harry Hughes and former co-defendant Gary Helton. Hughes stated that his knowledge of Leonardo Paulino, Carlos Paulino, Vieyra, and Fernandez was through drugs. Hughes testified that he made four trips to Miami for Leonardo Paulino. His testimony corroborated Torres' description of the drug trafficking scheme. In all, Hughes testified to transporting approximately 13 kilograms of cocaine.

Helton was the last to enter the conspiracy. Helton met Carlos Paulino in January of 1989, when Helton started purchasing cocaine from Carlos Paulino. Helton drove Carlos Paulino to Miami in a car rented in Helton's name at the request of Carlos Paulino. Helton testified that Carlos Paulino returned to Lexington by bus carrying a cooler hiding cocaine and Helton returned in the rental car. Helton made a second trip to Miami for Leonardo Paulino. In all, Helton received a total of 29 1/2 ounces cocaine from Carlos Paulino and Leonardo Paulino as payment for those trips.

The remainder of the government's proof consisted primarily of material corroborating the manner in which the Paulino drug enterprise was conducted. The government introduced records showing car rentals during the periods of time testified by Torres, Hughes, and Helton. Other government witnesses testified to the use of motel rooms and apartments by the Paulino group for drug trafficking. Their testimony was consistent with the testimony of the three drug trafficking witnesses. Also, wire transfers were introduced showing the flow of proceeds from Lexington to Miami.

FACTS RELATING TO MOTION TO SUPPRESS

On or about February 7, 1987, the Lexington Police Drug Enforcement Unit began investigating the activities of Leonardo Paulino and Fernandez after receiving confidential information that the two were involved in a large scale drug trafficking operation between Miami, Florida and Lexington, Kentucky. In late 1988, a confidential informant reported that Leonardo Paulino used rental cars from Thrifty-Rent-A-Car on Versailles Road in Lexington. The Lexington police began surveilling both the bus station in Lexington and Paulino's apartment in February of 1989. On February 14, 1989, they observed a Thrifty rental car parked at the apartment. The officers also retrieved from the apartment a number of one-way ticket receipts which reflected a pattern of trips from Miami, Florida to Lexington, Kentucky on the second Wednesday of the month, and rental car receipts from Thrifty-Rent-A-Car.

The Lexington police set up surveillance at the Lexington bus station on March 8, 1989, focusing on buses that originated in the south Florida area. Based on information provided by the confidential informant, the officers were looking for one to three individuals, primarily hispanic or black, carrying an Igloo cooler. On March 9, 1989, a black male and a hispanic male were observed disembarking from a Florida to Lexington bus. One individual, later identified as Carlos Paulino, was carrying a Playmate cooler; the other, who later turned out to be Torres, was carrying a suitcase. The two entered a car that had arrived at the bus station approximately forty minutes earlier. Carlos Paulino placed the cooler on the back seat of the car next to Torres. The driver of the vehicle moved over, and Carlos got behind the wheel and drove off.

The officers did not stop the vehicle at that point because they did not have sufficient units to make the stop and had been informed by the confidential informant that Carlos Paulino had been in possession of an Uzi machine gun. The officers established surveillance of the vehicle and ran a check on the license plate. Due to a transmittal error in the number of the plate, the officers were unable to get a report on the plate.

Approximately five minutes after they left the bus station, the Drug Enforcement Unit decided to stop the vehicle in order to identify the occupants and determine whether they were associated with Leonardo Paulino. Although four units were involved in the stop, only six of the officers made the initial approach. The officers asked the individuals to step out and identify themselves and at least one of the officers had his weapon drawn. Carlos Paulino failed to produce a driver's license and falsely identified himself as "Juan Leonardo Paulino." One of the officers testified that he knew the name given by Carlos Paulino was false. Torres identified himself as Torres. At that point, the officers removed the cooler from the back seat of the vehicle and conducted a protective search of the car and its contents. Upon examination of the cooler, the officer noticed a crack in the corner of the lining and removed the lining from the cooler revealing two plastic bags, which subsequently were verified to contain cocaine. The officers arrested Carlos Paulino and Torres.

PROCEDURAL HISTORY

On May 17, 1989, an indictment was returned charging Juan Leonardo Paulino, Ada Fernandez, Gary Helton, Edward Chazulle, Alex Vieyra, Steve Pierre, Carlos Paulino, and Samuel Torres with one count of conspiring to distribute cocaine between 1987 and March 9, 1989; Carlos Paulino and Torres with one count of possession with the intent to distribute 752 grams of cocaine on March 9, 1989; and Leonardo Paulino with conducting a continuing criminal enterprise with respect to violations of 21 U.S.C. Secs. 841(a)(1) and 846, in violation of 21 U.S.C. Sec. 848. On August 2, 1989, a superseding indictment was returned. The superseding...

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