U.S. v. Perez
| Citation | 871 F.2d 45 |
| Decision Date | 29 March 1989 |
| Docket Number | No. 88-3409,88-3409 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Alfredo PEREZ, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Kathleen Brinkman, Asst. U.S. Atty. (argued), Cincinnati, Ohio, for U.S Martin S. Pinales (argued), Cincinnati, Ohio, for Alfredo Perez.
Before KEITH, MARTIN and RYAN, Circuit Judges.
Alfredo Perez appeals (1) the district court's denial of his motion to strike and/or declare a mistrial for the testimony of a witness referring partially to a drug related incident prior to the time period listed in the indictment; (2) the refusal of the district court to declare the sentencing guidelines unconstitutional; and (3) the placement by district court of Perez in category 30 under the sentencing guidelines and charging Perez with the cost of incarceration. We affirm the district court.
On December 16, 1987, a federal grand jury returned a four-count indictment against Perez. Perez was charged with participation in a conspiracy to possess with intent to distribute and to distribute cocaine from an unknown time prior to May, 1987 up to December 3, 1987, in violation of 21 U.S.C. Sec. 846. Perez was charged with distributing about 280.7 grams of cocaine on December 3, 1987 in violation of 21 U.S.C. Sec. 841(a)(1) and with possession of about 507.8 grams of cocaine in violation of 21 U.S.C. Sec. 841(a)(1). Finally, Perez was charged with the intent to carry on a business enterprise involving the possession and distribution of cocaine and traveling from Florida to the Southern District of Ohio in furtherance of that enterprise in violation of 18 U.S.C. Sec. 1952(a)(3). On February 23, 1988, a jury convicted Perez on all four counts and specifically found that Perez possessed with intent to distribute 500 grams or more of cocaine.
On May 5, 1988, Perez was sentenced by a district judge who applied the sentencing guidelines. Perez filed a motion asking the court to declare the sentencing guidelines unconstitutional. The district court has not expressly ruled on that motion. The district court sentenced Perez on the consolidated charges to 97 months and 4 years of supervised release, a fine of $26,843.70, and a $50.00 assessment. The district court found that level 30 of the sentencing guidelines applied to Perez.
On December 3, 1987, the Drug Enforcement Agency, the FBI, and the Cincinnati Police Department used an informant to set up an undercover purchase of cocaine from a third party, Alvin Pettijohn, in Cincinnati, Ohio. DEA special agent, Kenneth Morrow, posed as the buyer of 10 ounces of cocaine to be purchased from Pettijohn for $10,000.00. At 2:05 p.m., special agent Morrow saw Perez come out of Pettijohn's residence, enter a white compact car which had pulled into Pettijohn's driveway earlier, drive the car into Pettijohn's garage, and close the garage door. At 3:00 p.m., Pettijohn came to a residence across the street where special agent Morrow and an informant were waiting and pulled a bag of about 10 ounces of cocaine out of his pocket and put it on the kitchen counter before agent Morrow. Agent Morrow told Pettijohn that he wanted to weigh the cocaine but he had to go to his car to get his scales. Before Agent Morrow left to get the scales, he gave an arrest signal by means of a body transmitter he was wearing. Upon entering the Pettijohn residence, FBI special agent Kenneth McCabe confronted defendant Perez as he stood at the kitchen table shaking cocaine from a baggie into a yellow mixing bowl. Perez was placed under arrest. On the kitchen table, McCabe saw remmants of aerosal cans.
Alvin Pettijohn testified at trial regarding what happened in the Pettijohn residence after Perez arrived and before the delivery of the cocaine to agent Morrow. He testified that the sample and 10 ounces of cocaine which he delivered to agent Morrow had come from Perez. Perez had transported the cocaine in aerosal cans. Pettijohn also testified that he had made several calls to Miami to arrange the delivery of the cocaine by Perez on December 3, 1987. Perez had supplied cocaine to Pettijohn approximately seven other times between April and December 3, 1987. On each occasion Perez had put the cocaine in aerosal cans in order to deliver it. Perez had offered to supply a kilogram of cocaine to Pettijohn for $21,000.00 cash. Perez had delivered 5-7 ounces on each occasion, charging $1,300.00 per ounce at first and $850.00 per ounce in December, 1987.
At trial, Greta Brooks testified before the jury that she had met Perez in Louisville, Kentucky, in September or October of 1986 through her boyfriend "Omar," a cocaine dealer. Perez was with a Cuban named "Bernie". The three men came to Greta Brooks' house and met in the basement for 10 to 15 minutes. When the prosecutor asked Greta Brooks at trial whether Omar had told her why he had brought the two men to her house, Perez objected and the court did not permit Greta Brooks to answer. The district court sustained Perez's objection to the remainder of Greta Brooks' testimony about what she saw and heard that week-end in 1986 as not relevant to the time period involved in this case from January, 1987 to December 3, 1987. Perez did not move to strike Greta Brooks' testimony at the time the jury heard it. Perez did ask the court just before closing arguments began to strike the Greta Brooks testimony. The court denied the motion. Perez asked the court just after closing arguments again to strike Greta Brooks testimony and to declare a mistrial because the prosecutor had referred to Greta Brooks' testimony in closing. The court denied both motions.
Perez argues that the trial court committed prejudicial error when it denied his motion to strike and/or grant a mistrial for the testimony of Greta Brooks. Perez claims that the testimony by Greta Brooks was inflamatory and inadmissible evidence.
Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected. Fed.R.Ev. 103. We must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties. Fed.R.Civ.P. 61; Logan v. Hudson, 865 F.2d 789, 790 (6th Cir.1989). In the instant case, no substantial right of Perez has been affected. More than sufficient evidence exists in the record as a whole, apart from Greta Brooks' testimony, to convict Perez under all four counts of the indictment. When special agent Morrow and the FBI agents...
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