U.S. v. Pielago
| Decision Date | 17 February 1998 |
| Docket Number | No. 95-5405,95-5405 |
| Citation | 135 F.3d 703 |
| Parties | 11 Fla. L. Weekly Fed. C 1119 UNITED STATES of America, Plaintiff-Appellee, v. Adrian PIELAGO, Maria Varona, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Mauricio Aldazabal, Coral Gables, FL, for Pielago.
Benjamin S. Waxman, Robbins, Tunkey, Ross, Amsel, Raben & Waxman, P.A., Miami, FL, for Varona.
Adalberto Jordan, Dawn Bowen, Asst. U.S. Attys., Miami, FL, for Plainitff-Appellee.
Appeals from the United States District Court for the Southern District of Florida.
Before CARNES, Circuit Judge, and KRAVITCH and REAVLEY *, Senior Circuit Judges.
Appellants Maria Varona and Adrian Pielago were jointly indicted, along with two others, in a multi-count indictment. After a one-week trial, a jury found Varona and Pielago guilty of conspiring to possess cocaine with the intent to distribute it in violation of 21 U.S.C. §§ 841(a)(1) and 846. They appeal their convictions and sentences. We reject Varona's sentence arguments without discussion, see 11th Cir. Rule 36-1, but two of her conviction-related arguments do warrant discussion, although not acceptance. She contends that the indictment against her should have been dismissed, because the government used her immunized statements to obtain it. She also contends that her conviction must be reversed, because the government's presentation of certain evidence against her at trial violated the proffer agreement. We reject her first contention as devoid of merit, and her second one because she failed to raise the issue in the district court. We do not believe that there was any error involving the proffer agreement, and we are convinced there was no plain error.
Pielago challenges both his conviction and sentence. We reject his conviction-related arguments summarily, see 11th Cir. Rule 36-1. However, we find merit in his contention that his sentence is due to be reversed, because the district court incorrectly calculated his criminal history by treating his prior term of confinement in a community treatment center as a "sentence of imprisonment" for purposes of U.S.S.G. § 4A1.1.
In mid-1993, the City of Miami Police Department and the Drug Enforcement Administration (DEA), through surveillance and undercover narcotics purchases, identified the homes of Frank Novaton and Jose Varona ("Jose") as drug distribution locations. The authorities discovered that Jose normally obtained cocaine from Novaton and brought it to his house, where he operated his cocaine distribution business. Further investigation revealed that Adrian Pielago and Jose's wife, Maria Varona ("Varona"), advised and assisted Jose in his drug operation. On November 6, 1993, Jose was arrested after surveillance indicated he was about to sell eight kilograms of cocaine that he had just received from Novaton to a drug dealer named "Carlos." For a short time after Jose's arrest, Novaton, Pielago, "Carlos," and Varona were unaware that Jose had been apprehended and were confused as to his whereabouts. During this confusion, Varona delivered one kilogram of cocaine to "Carlos" in a gray tool box.
Based on the government's investigation and the evidence gathered as a result of Jose's November 6 arrest, in December of 1993 a grand jury indicted Jose, Pielago, Rolando Caceras--who the government then believed was "Carlos"--and Varona. The indictment charged them with conspiring to possess cocaine with the intent to distribute it, and possession of cocaine with the intent to distribute it in violation of 21 U.S.C. §§ 841(a)(1) and 846.
Initially, Jose and Varona cooperated with the government, and they intended to plead guilty in return for a reduced sentence. Varona signed a proffer agreement, agreeing to give the government information about the conspiracy in return for a promise to consider leniency. The agreement provided for "use immunity," specifying that none of the information or statements Varona provided would be used against her in any criminal proceeding, but it explicitly reserved the government's right to pursue investigative leads derived from Varona's proffered statements and to use any derivative evidence against her. Among her statements to the government, Varona named Carlos Hechavarria as the real "Carlos." The government, satisfied with Varona's proffer, said that it was willing to allow her to plead guilty to a lesser offense, namely, using a telecommunications facility to facilitate a narcotics transaction.
Based on Jose and Varona's statements, the government sought and obtained a superseding indictment that named Carlos Hechavarria as a conspirator and dropped the charges against Caceras. The superseding indictment also added the use of a telecommunications facility charge, in order to allow Varona to plead guilty to that charge.
However, Varona's cooperation ceased when her husband Jose was murdered. Fearing for their lives, Varona and her children were taken into protective custody. Apparently, Jose had been murdered because he had been cooperating with the government. His plea agreement had specifically required him to testify against his co-conspirators and other drug dealers. With Jose's death, the government needed Varona to testify, but she refused to do so. Because of her refusal, the government rescinded its plea offer. Varona and Pielago went to trial on the superseding indictment.
On the first day of trial, after the jury was sworn, Varona moved to dismiss the superseding indictment on the ground that the government had used her statements against her before the grand jury in violation of her proffer agreement. Because she refused to ask for a mistrial, the district court declined to rule on her motion to dismiss the indictment until after trial, warning her that under United States v. Mechanik, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986), a guilty verdict might eliminate her claim.
Hechavarria, who had pleaded guilty, testified for the government at trial, providing much of the evidence against Varona and Pielago. Varona did not object to introduction of Hechavarria's testimony as a breach of her proffer agreement. The jury found her and Pielago guilty of conspiring to possess cocaine with the intent to distribute it. However, the jury acquitted Pielago of possessing cocaine, and deadlocked on the possession and telecommunications facility charges against Varona. Those charges were later dismissed.
Following the verdicts, the district court conducted an evidentiary hearing pursuant to Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), in order to determine whether the government had violated Varona's proffer agreement. The court held that the government had not violated the proffer agreement by using Varona's statements to obtain the superseding indictments, because it found that the government had prior knowledge of and independent sources for the evidence used to indict Varona. Accordingly, the district court denied Varona's motion to dismiss the superseding indictment.
The district court then conducted a sentencing hearing. At that hearing the court found Varona and Pielago responsible for the nine kilograms of cocaine involved in the conspiracy (the eight confiscated when agents arrested Jose plus the one in the tool box that Varona gave Hechavarria). Based on that amount of cocaine, the district court determined that both their base offense levels were thirty. Because Varona had a Category I criminal history, the district court sentenced Varona to 97 months imprisonment, the minimum term for her sentencing range of 97 to 121 months.
The probation officer recommended that Pielago be given seven criminal history points, resulting in a Category IV criminal history. Pielago objected in part, contending that he should be given one rather than two criminal history points for his 1986 conviction for conspiring to transfer an automatic firearm because his sentence of six months had been served in a community treatment center. The district court disagreed, because it considered the six-month sentence to a community treatment center to be a "sentence of imprisonment" under § 4A1.1, which prescribed two criminal history points. Accordingly, Pielago was given a Category IV criminal history, instead of a Category III. As a result, Pielago's sentencing range was 135 to 168 months. The court sentenced him to 140 months imprisonment.
We review the district court's denial of Varona's motion to dismiss the indictment for an abuse of discretion. See United States v. Thompson, 25 F.3d 1558, 1562 (11th Cir.1994). Because Varona did not object to Hechavarria's testimony at trial, we review only for plain error the admission of that testimony. See Fed.R.Crim.P. 52(b). Finally, we review the district court's interpretation of the sentencing guidelines de novo. See United States v. Coe, 79 F.3d 126, 127 (11th Cir.1996).
Varona challenges the district court's denial of her motion to dismiss the superseding indictment. Because the grand jury that issued the superseding indictment heard her immunized statements, she contends that indictment should have been dismissed. Varona relies on United States v. Tantalo, 680 F.2d 903, 909 (2d Cir.1982), in which the Second Circuit adopted a per se rule that an indictment must be dismissed as to any defendant whose immunized statement or testimony was heard by the grand jury returning the indictment. However, to the extent that Tantalo establishes a per se rule 1, we disagree with it. We have never accepted a per se rule for dismissing indictments obtained as a result of a defendant's immunized testimony; the facts of this case show why a per se rule is inappropriate.
The grand jury returned the original indictment against Varona...
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