U.S. v. Ramirez

• Decision Date: 19 February 1992
• Docket Number: No. 90-2525,90-2525
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robinson RAMIREZ and Nicolas Farias Sanchez, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1035

954 F.2d 1035

UNITED STATES of America, Plaintiff-Appellee, v. Robinson RAMIREZ and Nicolas Farias Sanchez, Defendants-Appellants.

No. 90-2525.

United States Court of Appeals, Fifth Circuit.

Feb. 19, 1992.

Thomas S. Berg, Marjorie A. Meyers, Asst. Federal Public Defenders, Roland E. Dahlin, II, Federal Public Defender, Houston, Tex., for Ramirez.

David E. Roberts, Larry M. Lee, Visalia, Cal., James L. Turner, Paula C. Offenhauser, Asst. U.S. Attys., Houston, Tex., for Sanchez.

Appeal from the United States District Court for the Southern District of Texas.

Before REYNALDO G. GARZA, GARWOOD, and DUHE, Circuit Judges.

DUHE, Circuit Judge:

Appellant Ramirez appeals his conviction of possession with intent to distribute cocaine. Appellant Sanchez seeks review of his conviction of money laundering and also appeals his sentence of 324 months for conspiracy, possession with the intent to distribute cocaine, and money laundering. We affirm the conviction of Ramirez, reverse the money laundering conviction of Sanchez, and remand for resentencing.

I. Background

Drug Enforcement agents arrested Appellants Ramirez and Sanchez, along with several other defendants, in November 1989 at the culmination of an investigation that was aided in large part by a government informant, Robert Bryant. Bryant associated with a drug import organization headed by William Tucker, Tucker's daughter Delores Erazo, and her husband Jairo Erazo. On the night the arrests occurred, Delores and Jairo Erazo met Bryant in the parking lot of a Houston service station where they instructed him to wait for a van. Soon after the meeting, two men, one of whom was Appellant Sanchez, arrived in a car. Sanchez accompanied Bryant to a house located at 5403 Arizona where Sanchez and two other men loaded two boxes, containing 250 kilograms of cocaine, into Bryant's van. The cocaine was wrapped in football-sized brown packages, each weighing a kilogram.

Delores Erazo then directed Bryant to a restaurant parking lot where he was to meet another man with whom he should switch cars. At the appointed parking lot Bryant met Appellant Ramirez. Bryant recognized Ramirez from an earlier encounter at Tucker's house where Bryant had seen Jairo Erazo give Ramirez a package. When Bryant asked Tucker about the incident, Tucker responded, "There goes seventy to seventy-five-thousand dollars.... There goes the stuff up your nose."

In the restaurant parking lot, Bryant asked Ramirez to make sure all of the "stuff" was there so that Jairo would not be angry. Ramirez looked into the van, opened the flap of one of the boxes, and glanced at its contents. Bryant and Ramirez then exchanged keys. When Ramirez attempted to start the van, he was arrested by agents who had been surveying the scene. The agents arrested Tucker and the Erazos shortly thereafter, and executed a search warrant on the house at 5403 Arizona. There they seized, among other things, a rifle and a box containing $132,980. Sanchez, who was present at the house, was arrested incident to the search.

II. Ramirez's Appeal

Ramirez's appeal is threefold. First he contends that the district court erred by trying him ahead of Delores Erazo, who, Ramirez claims, would have been willing to testify in his favor had she not risked incriminating herself before her own trial. Second, Ramirez argues that the district court should have stricken the testimony of informant Bryant because Bryant destroyed his notes before trial in violation of a court order. Finally, he asserts that the evidence introduced by the Government is insufficient to support the jury's guilty verdict.

A. Severance and Order of Trials

Ramirez moved to sever his trial from that of Delores Erazo, stating that Delores's attorney had advised Ramirez's counsel that Delores "were she called to testify in a separate trial in which her guilt were not an issue, would state that Mr. Ramirez was sent on an errand in her employ and that he had neither knowledge of the purported negotiations nor of the contents of the package contained in the boxes in the van." The motion stated that Delores Erazo was the only available source of this information.

The district court granted Ramirez's motion for severance, but tried him ahead of Delores. After the jury found Ramirez guilty, he moved for a new trial on the ground that the court's failure to try Delores first deprived him of material exculpatory evidence. The court denied this motion and later denied Ramirez's request to reconsider. In his motion to reconsider the motion for new trial, Ramirez included an unsworn statement of Delores describing Ramirez's innocent involvement in the crime and indicating her willingness to testify in his behalf. Delores, by this time, had reached a plea agreement with the Government. On appeal, Ramirez attacks the court's decision to try him ahead of Delores, the court's denial of a new trial, and its refusal to reconsider its rulings.

Ramirez argues that by trying him ahead of Delores and thereby thwarting the purpose of his severance, the court de facto denied his request to sever his trial from Delores's. See United States v. DiBernardo, 880 F.2d 1216, 1227 (11th Cir.1989). The Government asserts that the court granted severance because the Government was not prepared to try all of the co-defendants together. Both theories require us to treat the court's action as a denial of Ramirez's severance request.

A movant seeking severance must demonstrate: 1) a bona fide need for the testimony, 2) the substance of the desired testimony, 3) its exculpatory nature and effect, and 4) the willingness of the co-defendant to testify at a separate trial. United States v. Rice, 550 F.2d 1364, 1369 (5th Cir.), cert. denied, 434 U.S. 954, 98 S.Ct. 478, 479, 54 L.Ed.2d 312 (1977). After such a showing, the court must consider: 1) the significance of the alleged exculpatory testimony in relation to the defendant's theory of defense, 2) the extent to which the defendant might be prejudiced by the absence of the testimony, 3) judicial administration and economy, and 4) the timeliness of the motion. United States v. Butler, 611 F.2d 1066, 1071 (5th Cir.), cert. denied, 449 U.S. 830, 101 S.Ct. 97, 66 L.Ed.2d 35 (1980). We review the district court's decision to grant or deny severance for an abuse of discretion. United States v. Williams, 809 F.2d 1072, 1084 (5th Cir.), cert. denied, 484 U.S. 896, 108 S.Ct. 228, 229, 98 L.Ed.2d 187 (1987).

The Government does not dispute that Ramirez was in need of the alleged exculpatory evidence. Rather, it argues that Ramirez failed to show the district court both the substance of the testimony, and Delores's willingness to testify. We agree. Ramirez's motion for severance rested on an alleged agreement between counsel for Delores and counsel for Ramirez. It did not contain an affidavit from Delores herself. At the pretrial hearing, Delores's lawyer significantly undercut the persuasiveness of Ramirez's motion by stating that he could not assure the court that his client would testify to the extent that Ramirez had suggested. Also facing the court at the pretrial hearing, as an alternative to the postponement of Ramirez's trial, was the chance that the Government might grant Delores use immunity for her testimony. Confronted with this alternative and the uncertainty of Delores's testimony, the district court did not err in favoring the judicial economy of trying Ramirez first.

Similarly, the motion for new trial lacked any assurances that Delores would testify to the extent described by Ramirez. Though the chance that Delores might receive immunity no longer existed when Ramirez moved for a new trial, the court was within its discretion in denying the motion based on the uncertainty of the proposed testimony.

Ramirez's motion to reconsider was untimely filed, coming as it did, more than ten days after the court had denied Ramirez's new trial motion. See United States v. Cook, 670 F.2d 46, 47 (5th Cir.), cert. denied, 456 U.S. 982, 102 S.Ct. 2255, 72 L.Ed.2d 860 (1982). We have, on occasion, construed belated challenges to sentences filed pursuant to Rule 35 of the Federal Rules of Criminal Procedure as requests for relief under 28 U.S.C. § 2255. See United States v. Santora, 711 F.2d 41, 42 (5th Cir.1983) (pro se litigant's "ill styled Rule 35 pleading" examined under section 2255). We do not believe the facts of this case warrant our extending Santora's rationale to untimely motions to reconsider new trial motions. Our decision, however, does not bar Ramirez from raising his claim in a separate section 2255 proceeding.

B. Bryant's Testimony

Prior to trial, the district court ordered the Government to preserve the rough notes of its agents. In violation of this order, Bryant, after preparing a summary of his notes, destroyed the scraps that made up his rough notes. Ramirez contends that this action violates the Jencks Act, 18 U.S.C. § 3500. The Jencks Act requires that after a Government witness has testified, the Government must produce any "statement" of the witness that the Government possesses. Id. § 3500(b). The statute defines "statement" in relevant part as "a written statement made by said witness and signed or otherwise adopted or approved by him." Id. § 3500(e)(1).

The notes destroyed by Bryant consisted of odd pieces of paper on which Bryant jotted down names, addresses, and license plate numbers. We find that the scattered notes taken by Bryant over the course of the investigation do not fit within the Act's purview. See United States v. Roemer, 703 F.2d 805, 807 (5th Cir.), cert. denied, 464 U.S. 935, 104 S.Ct. 341, 78 L.Ed.2d 309 (1983); Needelman v. United States, 261 F.2d 802, 806 (5th Cir.1958), cert. dismissed, 362 U.S. 600, 80 S.Ct. 960, 4 L.Ed.2d 980 (1960). The district court, therefore, was not obligated to prohibit Bryant's testimony, as it would have been had the Act applied.

Nonetheless, Bryant's destruction of...