U.S. v. Quiroz

• Decision Date: 30 December 1993
• Docket Number: No. 171,D,171
• Citation: 13 F.3d 505
• Parties: UNITED STATES of America, Appellee, v. Oscar QUIROZ, Defendant-Appellant. ocket 93-1216.
• Court: U.S. Court of Appeals — Second Circuit

Page 505

13 F.3d 505

UNITED STATES of America, Appellee, v. Oscar QUIROZ, Defendant-Appellant.

No. 171, Docket 93-1216.

United States Court of Appeals, Second Circuit.

Argued Sept. 21, 1993.

Decided Dec. 30, 1993.

Susan Corkery, Asst. U.S. Atty., Brooklyn, NY (Zachary W. Carter, U.S. Atty. for the Eastern District of New York, Emily Berger, Karen Straus, Asst. U.S. Attys., Brooklyn, NY, on the brief), for appellee.

Joel B. Rudin, New York City, for defendant-appellant.

Before: MESKILL, KEARSE, and WINTER, Circuit Judges.

KEARSE, Circuit Judge:

Defendant Oscar Quiroz appeals from a judgment entered in the United States District Court for the Eastern District of New York convicting him, following a jury trial before Carol Bagley Amon, Judge, of conspiracy to distribute and to possess with intent to distribute cocaine base, in violation of 21 U.S.C. Secs. 841 and 846 (1988). Quiroz was sentenced principally to 188 months in prison and a five-year term of supervised release. On appeal, he contends principally that the district court erred (a) in denying his motion to suppress postarrest statements obtained from him following his request for counsel, (b) in admitting expert testimony and other-crimes evidence at trial, and (c) in calculating his sentence. For the reasons below, we find merit in his first contention, and we vacate the judgment and remand for a new trial.

I. BACKGROUND

A. The Events

There being no challenge to the sufficiency of the evidence, the government's proof at trial may be summarized briefly. The evidence as to the events leading to Quiroz's arrest was presented principally through the testimony of unindicted coconspirator Jose Teran, also known as Jaime Cordero ("Cordero").

Prior to December 1990, Cordero had met Quiroz and his sister Nancy, a codefendant who has not appealed her conviction, through their brother Ramon. In December 1990, Julio Carillo, an Ecuadorian soccer player, spoke to Cordero of the possibility of importing narcotics into the United States from South America and asked Cordero to contact Quiroz to discuss whether Quiroz would be interested in financing the venture. Cordero arranged to go with Carillo to Quiroz's travel agency, Reynal Travel, to discuss the matter with Quiroz.

At that initial meeting, Carillo told Quiroz that he expected a kilogram of cocaine to arrive from Ecuador on December 26, 1990, and he offered to sell it to Quiroz for $13,000. Carillo informed Quiroz that if this "test" importation proved successful, greater quantities of drugs would be imported in the same way. At a second meeting in December, the parties finalized the terms; Quiroz agreed to advance $10,000 to enable Carillo to obtain the drugs.

On February 15, 1991, Carillo informed Cordero that the shipment had arrived in Jacksonville, Florida, and Cordero relayed that information to Quiroz. Quiroz told Carillo and Cordero to go see Nancy. Nancy, after conferring with Quiroz by telephone, agreed to supply $7,000 of the $10,000 advance, and she gave Carillo airplane tickets to enable him to go to Jacksonville and pick up the drugs. Later that day, Quiroz met Carillo and Cordero and gave Carillo the $10,000. On February 21, Carillo called Cordero to report that the cocaine was ready to be picked up at Carillo's apartment in Manhattan. Cordero went to Reynal Travel, where he spoke by telephone with Quiroz and relayed word of the shipment's arrival. Ramon arrived at the agency and told Cordero there was an urgent need to get the drugs from Carillo because a resale had already been arranged. Ramon drove Cordero to Manhattan, where they met Carillo who took them to his apartment.

Carillo then informed Ramon and Cordero that what had arrived was cocaine base, not cocaine. Ramon called Quiroz to inform him of the "quality of the drugs that had been received," and to ask if he would still accept delivery. After speaking with both Ramon and Carillo, Quiroz agreed to accept the drugs. Ramon and Cordero took the cocaine base and drove off in Ramon's car. Shortly thereafter, the car was stopped by agents of the United States Customs Service ("Customs"), who had been following from the time Cordero and Ramon left Reynal Travel. The agents received consent to search the car and found the cocaine base in the trunk. Ramon and Cordero were placed under arrest.

Thereafter, despite Ramon's requests, threats, and bribe attempt, Cordero eventually implicated Nancy and Quiroz. Quiroz was arrested on June 27, 1991, and charged with conspiracy to distribute and to possess with intent to distribute cocaine base, in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(A)(iii). Following his arrest, Quiroz made a statement to Customs Special Agent Richard Dallesandro, denying that he knew Carillo and denying that he had given Carillo or anyone else money in February to purchase narcotics.

B. The Motion to Suppress

Prior to trial, Quiroz moved to suppress his postarrest statements to Dallesandro, arguing that the statements had been obtained in violation of his Miranda rights (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)) because they were taken after he stated that he wished to speak with an attorney. The motion was referred to Chief Magistrate Judge A. Simon Chrein, who held an evidentiary hearing at which the government produced the testimony of Dallesandro and Special Agent Jeffrey Larocque of the United States Drug Enforcement Administration ("DEA").

Dallesandro testified that he, one other Customs agent, two DEA agents including Larocque, and one agent from the Internal Revenue Service, had arrested Quiroz pursuant to two warrants, one obtained by the DEA charging him with money laundering and the other obtained by Customs charging him with the present narcotics conspiracy offense. Larocque testified that immediately following the arrest, Quiroz was placed in the DEA agents' van and was read his rights by the other DEA agent. Only Quiroz and the Quiroz was then taken to Reynal Travel where the agents executed a search warrant. While there, Dallesandro and the other Customs agent took Quiroz into a back room, told him he was under arrest on the present narcotics conspiracy charge, and had him read printed forms in English and Spanish, each containing a "Statement of Rights" and a section providing for a formal waiver. Dallesandro asked Quiroz whether he understood the forms, and Quiroz nodded affirmatively. Dallesandro asked Quiroz to sign the forms, but Quiroz declined to sign until he had spoken to an attorney. Dallesandro testified:

two DEA agents were present in the van. Quiroz did not ask to speak to an attorney, and he engaged in conversation with the agents on the subject of the money-laundering charge. When asked if he wished to cooperate, Quiroz said he did not as he had done nothing wrong. Quiroz was informed by the DEA agent that there was also a Customs warrant for his arrest on a narcotics distribution conspiracy charge, but the agent did not give him any details. There was no discussion in the van of the events leading to the narcotics conspiracy charge.

After I had asked him if he understood [his rights], I said, would you mind just signing these? He said, I--Before I sign anything, I want to speak to my attorney. Okay, I took them back.

(Suppression Hearing Transcript, October 24, 1991, at 73.) Dallesandro testified that he accordingly wrote on the forms "defendant refused to sign copy until he called his attorney." (Id. 74.) Dallesandro then "just asked Mr. Quiroz, I said, would you mind if I ask you a few questions? He said, no, not at all, go right ahead." (Id.)

In response to Dallesandro's questions, Quiroz denied knowing Carillo and denied giving anyone money to purchase narcotics. After answering a few more questions, Quiroz said he would answer no further questions as he wished to speak to his attorney. At that point, the questioning ceased.

Cross-examined as to his understanding of Quiroz's request for an attorney, Dallesandro testified:

Q. You understood when he refused to sign the form before speaking to an attorney, that he wanted to speak to an attorney then, didn't you?

A. Yes, sir.

(Id. 116.) On redirect examination, he testified:

Q. When the defendant Oscar Quiroz refused to sign the Miranda rights form, what did he say?

....

THE WITNESS: He wanted to speak to his attorney before he signed anything.

Q. And what did you understand him to mean by that statement?

A. That before he signed the Waiver of Rights, that he wanted to ask his attorney if it was all right for him to sign his Waiver of Rights.

(Id.)

Dallesandro also testified that prior to the questioning he had asked Larocque whether Quiroz had been read his rights in the DEA van. He said that Larocque informed him that those rights had been read, but that Larocque had not informed him whether Quiroz had requested an attorney or answered any questions. Larocque in effect confirmed that there had been no discussion with Dallesandro of whether Quiroz had requested an attorney or answered any questions; he testified that Dallesandro had not even asked him on the date of the arrest whether Quiroz had been read his rights. Nor did Larocque hear Dallesandro or the other Customs agent seek that information from the other DEA agent.

At the end of the suppression hearing, the magistrate judge recommended that the motion to suppress be denied. He found that Quiroz had refused to sign the waiver form but that he had indicated to the Customs agents that he had no objection to being questioned:

Now, it is clear to me that the defendant had--that the only statement that the defendant made concerning an attorney before he made the statements in question, which again I emphasize are exculpatory, was not in connection with the continued questioning, but in connection with whether The first mention of a lawyer was prior to the statements at issue, and the mention of a lawyer was in the...