U.S. v. Rivera

Decision Date04 April 1990
Docket NumberNos. 85-1768,85-1771,s. 85-1768
Citation900 F.2d 1462
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Luis Anthony RIVERA, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Louis Vernell, North Miami Beach, Fla., for defendant-appellant.

Mervyn Hamburg, Appellate Section, Criminal Div., U.S. Dept. of Justice, Washington, D.C. (Roger Hilfiger, U.S. Atty., E.D.Okl., and Paul Hess, Asst. U.S. Atty., E.D.Okl., with him on the brief), for plaintiff-appellee.


EBEL, Circuit Judge.

This case presents the issue of whether defendant Luis Anthony Rivera's convictions for various drug offenses should be reversed due to the cumulative effect of alleged deficiencies in the performance of government-appointed defense counsel, combined with the effect of the trial court's refusal to grant a pretrial continuance. Because we find no error in the performance of defendant's trial counsel nor in the trial court's denial of defendant's motion for a continuance, we have no occasion to apply the cumulative-error doctrine in this case. Further, we have concluded that the performance of defense counsel and the trial court's refusal to grant a pretrial continuance did not cause the defendant's trial to be fundamentally unfair. Therefore, we vacate the three-judge panel's judgment reversing defendant's convictions; we affirm the trial court's judgment in part; and we remand the case to the trial court in order to vacate defendant's two lesser-included conspiracy convictions.


Defendant was convicted, in a jury trial, of thirteen drug offenses charged in two indictments. The first indictment charged defendant and six other named individuals with the following: (1) conspiracy to import cocaine, in violation of 21 U.S.C. Secs. 952(a), 960, and 963; (2) importation of cocaine, in violation of 21 U.S.C. Secs. 952(a) and 960; (3) conspiracy to possess cocaine with intent to distribute and conspiracy to distribute cocaine, in violation of 21 U.S.C. Secs. 841(a)(1) and 846; (4) possession of cocaine with intent to distribute and distribution of cocaine, in violation of 21 U.S.C. Sec. 841(a)(1); (5) conspiracy to travel in interstate and foreign commerce with the intent to import cocaine, to possess cocaine with the intent to distribute, and to distribute cocaine, in violation of 18 U.S.C. Secs. 371 and 1952(a)(3); (6) traveling in interstate and foreign commerce with the intent to import cocaine, to possess cocaine with the intent to distribute, and to distribute cocaine, in violation of 18 U.S.C. Sec. 1952(a)(3); and (7) engaging in a continuing criminal enterprise ("CCE"), in violation of 21 U.S.C. Sec. 848.

The first indictment concerned the alleged importation of approximately 460 pounds of cocaine from Columbia to an isolated airstrip in Talihina, Oklahoma, on July 1, 1983. It alleged that defendant arranged for someone to locate an appropriate airstrip and to arrange transport of the cocaine to Miami. The indictment described the purchases of the Cessna aircraft and two pickup trucks used to transport the cocaine and detailed the travels of the various participants in the days leading up to the July 1, 1983 importation. Several of the alleged perpetrators were arrested shortly after the cocaine was transferred from a Cessna 404 Titan aircraft to an awaiting pickup truck. Defendant was arrested on January 18, 1985, more than eighteen months later.

The second indictment concerned the alleged importation of approximately 400 pounds of cocaine from Columbia to Talihina, Oklahoma, on July 12, 1982, and its transport to Florida. The six counts in the second indictment were identical to counts I through VI in the first indictment. The second indictment did not contain a CCE count. All of the allegations in the second indictment related to the July 12, 1982 operation.

The trial court admitted evidence of two drug offenses not specifically charged in either indictment. The first transaction occurred in May 1983, when defendant allegedly contacted Cecil Ford, an indicted coconspirator under the first indictment, and instructed him to travel from Florida to the Denver, Colorado Airport to deliver five kilos of cocaine. Ford was allegedly paid $5,000 for the job.

The second transaction occurred approximately one week prior to the July 1, 1983 importation charged in the first indictment. Defendant allegedly instructed William Sebolt and Rogers Ariza, indicted coconspirators under the first indictment, to travel from Oklahoma to Milwaukee, Wisconsin, in order to pick up cocaine from a parked aircraft. They allegedly did so, placing the cocaine in a hidden compartment in a truck provided by defendant, and transported the cocaine to Florida. Upon delivering the cocaine, Sebolt and Ariza allegedly received cash payments of $5,000 and $10,000, respectively.

The prosecutor elicited extensive testimony as to these events and discussed them in both his opening statement and closing argument. See R.Supp.Vol. II at 126-27; R.Supp.Vol. IV at 479-87; R.Supp.Vol. V at 686-96, 751-55; R.Supp.Vol. VII at 1222-24. The prosecutor stated in his closing argument that the Denver and Milwaukee transactions were relevant to proving the CCE count. R.Supp.Vol. VII at 1222-23.

Defense counsel apparently learned of those transactions from the prosecutor shortly before trial. At the beginning of the trial, defense counsel moved to exclude evidence of them. See R.Supp.Vol. II at 97-106. The prosecutor acknowledged that the Denver and Milwaukee transactions had not been included in the indictment because the prosecution was not aware of them at the time the indictment was drafted. R.Supp.Vol. II at 99. Evidence of the Denver and Milwaukee transactions had not been presented to the grand jury that returned the indictments.

On January 24, 1985, six days after defendant was arrested, Gregory Meier was appointed to represent defendant. Meier filed discovery motions on January 28, requesting materials pursuant to Fed.R.Crim.P. 16, the Jencks Act (18 U.S.C. Sec. 3500), and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). R.Vol. I at 13-15; R.Vol. II at 8-10. Those motions were granted in part and denied in part. R.Vol. I at 19-22; R.Vol. II at 14-17. On February 27, 1985, Meier filed motions to withdraw as defendant's counsel, claiming an "irreconcilable conflict" with his client. R.Vol. I at 24; R.Vol. II at 19. That conflict apparently developed when Meier recommended a certain course of action during plea negotiations with which defendant disagreed. R.Supp.Vol. II at 8. Although Meier stated that he remained "ready and able" to represent defendant, Rivera had apparently "lost confidence" in him. Id. Meier's motions to withdraw were denied on February 28, 1985. R.Vol. I at 27; R.Vol. II at 21.

On March 8, 1985, another attorney, D.D. Hayes, visited with defendant, and Hayes filed formal entries of appearance on behalf of defendant on March 11. R.Supp.Vol. II at 4-5; R.Vol. I at 26; R.Vol. II at 22. On March 13, Hayes requested a continuance. R.Vol. I at 33-34; R.Vol. II at 28-29. The purpose of the continuance was to allow time for Hayes to examine the "voluminous" documents necessary to prepare Rivera's defense. R.Vol. I at 34; R.Vol. II at 29. Among the materials that Hayes allegedly had to review were "two transcripts of prior trials and numerous FBI reports." R.Vol. I at 34; R.Vol. II at 29. 1 Hayes also noted that he had already received "one box containing thousands of documents in the nature of [defendant's] business records from Miami, Florida" and he "anticipate[d] receiving several more boxes of such material." R.Vol. I at 34; R.Vol. II at 29. Hayes further asserted that he needed to master the "numerous technical details relating to aircraft" involved in this case, as well as "the normally complicated issues of a conspiracy type case." R.Vol. I at 34; R.Vol. II at 29. On March 14, 1985, the trial court entered minute orders denying the continuance requests. R.Vol. I at 36; R.Vol. II at 31.

On March 18, just prior to the beginning of jury selection for defendant's trial, Hayes renewed his motion for a continuance. R.Supp.Vol. II at 3. Hayes noted that he had still not received all of the documents from Miami that he anticipated using in preparing Rivera's defense. Id. He further argued that a continuance was necessary for the other reasons stated in his motion. Id. Hayes told the court that until he had agreed to take on defendant's case, he "had no idea of the magnitude of paper work and of the necessity of obtaining evidence from Miami, Florida." R.Supp.Vol. II at 5.

However, prosecutor Donn Baker told the court that during the week prior to trial, Hayes had worked "ten and twelve hours a day, and maybe more, each and every day on this case," and he had "abandoned his other law practice and devoted the last week [prior to trial] entirely to this matter and ... spent numerous hours at the jail talking to his client." R.Supp.Vol. II at 5-6. Baker further acknowledged that "if the truth be known, [Hayes] knows more about the Government's evidence than the prosecutor does." R.Supp.Vol. II at 6.

The trial court noted that Meier was still assigned to the case and that if defendant so desired, Meier would be directed to continue working on the case at government expense. R.Supp.Vol. II at 9. After Hayes stated that both he and defendant wanted Meier to remain on the case, the trial court denied Meier's motion to withdraw. R.Supp.Vol. II at 10. The court also denied the renewed motion for a continuance, although later, after the government had rested its case, the court did grant Hayes' request for a weekend continuance to enable him to prepare Rivera to testify. R.Supp.Vol. VI at 1002.

Defendant was convicted of all thirteen counts and was sentenced to a prison term of life plus...

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