U.S. v. Rivera

• Decision Date: 05 December 1985
• Docket Number: No. 85-1081,85-1081
• Citation: 778 F.2d 591
• Parties: 19 Fed. R. Evid. Serv. 1358 UNITED STATES of America, Plaintiff-Appellee, v. Billy RIVERA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 591

778 F.2d 591

19 Fed. R. Evid. Serv. 1358

UNITED STATES of America, Plaintiff-Appellee, v. Billy RIVERA, Defendant-Appellant.

No. 85-1081.

United States Court of Appeals Tenth Circuit.

Dec. 5, 1985.

Peter Schoenburg, Asst. Federal Public Defender, Albuquerque, N.M., for defendant-appellant.

Presiliano Torrez, Asst. U.S. Atty. (William L. Lutz, U.S. Atty., and Larry Gomez, Asst. U.S. Atty., Albuquerque, N.M., were also on brief) for plaintiff-appellee.

Before HOLLOWAY, Chief Judge, and MOORE, Circuit Judge, and CROW, District Judge ^*

HOLLOWAY, Chief Judge.

In this criminal action defendant Billy Rivera was convicted of possession of cocaine with intent to distribute, 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2, intentional distribution of cocaine, 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2, and unlawful, knowing or intentional use of a telephone to facilitate distribution of cocaine, 21 U.S.C. Sec. 843(b). At trial, defendant admitted he committed each of the acts alleged in the three-count superseding indictment but asserted the sole defense that the Drug Enforcement Agency Special Agent who ultimately arrested him entrapped him into committing the acts. On appeal of his convictions on all three counts, defendant asserts several grounds for reversal.

I

Considered in the light favorable to the jury's verdict, the Government proof tended to show the following facts.

On December 31, 1983 at a restaurant in Albuquerque, New Mexico, defendant sold four grams of cocaine to special Agent Ismael Fuentes of the Drug Enforcement Agency (DEA). Fuentes posed as "Jesse," a wealthy investor interested in investing in legitimate real estate deals who also wanted to purchase a large quantity of cocaine. Before meeting defendant Fuentes in mid-September 1983 met Jerry Jaramillo, an alleged co-conspirator and friend of defendant who dealt in drugs. ¹ Fuentes testified that in a conversation on December 13, 1983 after numerous meetings, Mr. Jaramillo allegedly told him that defendant was one of his three sources for cocaine. Jaramillo introduced Fuentes to defendant on December 21. On December 28, 1983 defendant telephoned Fuentes to arrange to meet with him to sell the cocaine.

On December 31, 1983, defendant met Jaramillo and Fuentes at the Albuquerque restaurant and, that day, defendant and Jaramillo transferred the cocaine to Fuentes. After further contacts with defendant on January 2, 3, and 5, 1984 Fuentes arrested him on January 6.

At trial, defendant admitted that he assisted Jaramillo in possessing cocaine and passing cocaine to Fuentes on December 31, 1983. Defendant also admitted he made the phone call on December 28, 1983 to set up the cocaine transaction. However, defendant claimed that Fuentes entrapped him into making the cocaine sale by luring him with promises of large real estate investments.

Defendant claims he is a legitimate businessman who deals in new and used Corvettes and real estate. Defendant also says that when Jaramillo first urged him to meet with "Jesse" to discuss a drug transaction, defendant declined to become involved. It was only when Jaramillo related to defendant on December 20 Jesse's interest in purchasing a Corvette and some condominiums from defendant and in beginning a legitimate business relationship that defendant agreed to meet with Fuentes. Defendant further claims that, when he told Jesse he had connections in Miami and Pittsburgh, he lied to retain Jesse as a client and that, when Jesse asked him to sell him a sample of cocaine, he had to go to a bar to obtain the sample. Defendant says he sold Jesse the cocaine to keep from losing him as a client because Jesse's business represented a once-in-a-lifetime opportunity.

The trial court permitted defendant to plead entrapment on Counts I and II of the indictment, but refused to permit him to assert the defense on Count III because defendant testified during cross-examination that he "did not intend to commit a crime" when he used the telephone on December 28 to set up his December 31, 1983 meeting with Fuentes. The jury convicted defendant on all three counts. The court later sentenced defendant to a merged six year prison sentence and an eight year special parole term on Counts I and II. On Count III, defendant received a four year prison sentence, to run concurrently with the merged six year sentence under Counts I and II.

II

The trial court's admonition of counsel during his opening statement

As his first ground for reversal defendant says that the trial court committed prejudicial error when it admonished his counsel in front of the jury not to make statements the trial judge felt were appeals to sympathy and prejudice. We conclude the trial judge committed no reversible error.

Regulation of the scope, extent and timing of defense counsel's opening statement rests within the district court's sound discretion. United States v. Freeman, 514 F.2d 1184, 1192 (10th Cir.1975). "The function of the defendant's opening statement is to enable him to inform the court and jury what he expects to prove, and the trial court may properly exclude irrelevant facts." Id. at 1192. The trial judge has an obligation to keep the trial on track and to prevent unfair appeals to sympathy or prejudice.

The trial judge admonished counsel he should not attempt to generate bias, sympathy or prejudice during the trial but allowed him to tell the jury where defendant grew up and who his family members were. In his opening statement, defense counsel detailed defendant's family background and his work history, including the sale of motorcycles and automobiles. II R. 33. Defendant's counsel then sought to compare defendant with other Hispanics in his age group with similar backgrounds, and to point out how defendant had succeeded by "pulling himself up by his boot straps." The court interrupted defendant's attorney's opening statement, advised him to go onto something else, and cautioned him about sympathy and prejudice. II R. 33. The single admonition in the jury's presence was brief.

The trial court's admonition to defense counsel in his opening statement was not an abuse of discretion.

III

Jaramillo's Out of Court Statement Identifying Defendant as

One of his Cocaine Sources

Defendant strenuously argues that the trial court improperly admitted, over a hearsay objection, Fuentes' testimony relating a statement by Jaramillo identifying defendant as a source of cocaine for Jaramillo. II R. 84. ² Defendant argues that the trial judge improperly failed to follow the preferred order of proof to permit admission of the statement, that the court improperly made its determination of admissibility before giving defendant an opportunity to present evidence on the conspiracy question, and that the court's findings on conspiracy and the admissibility of the statement were not supported by the evidence.

A

The order of proof on the conspiracy issue and the timing of

the findings

It is convenient to consider both the defendant's complaints about the order of proof and the timing of the trial judge's findings on conspiracy together. We conclude there was no reversible error in either respect.

During his testimony, Special Agent Fuentes described several meetings he had in late 1983. He testified that on December 13 Jaramillo invited Fuentes to Santa Fe. When Fuentes was asked what the purpose of the meeting was, defense counsel objected on hearsay grounds, and the trial judge cautioned that the Government should approach the testimony in a different way to avoid hearsay. II R. 83-84. Fuentes then testified that a meeting occurred on December 13 at the Ramada Inn in Santa Fe with Jaramillo, Special Agent Kevin Small, and Fuentes being present at the motel.

At this point, Government counsel asked Fuentes whether Jaramillo identified his source of cocaine. Defense counsel again objected on hearsay grounds. The trial judge said that the testimony would go to the question of a predicate for the testimony about the meeting and its purpose, and overruled the objection. II R. 85. Fuentes testified that Jaramillo advised him of 3 sources and identified defendant Rivera as one of the sources for Jaramillo's cocaine. The trial judge then directed that the jury be taken from the courtroom and the jury departed.

The trial judge next requested statements by counsel for both sides on the hearsay objection. He stated that ultimately the hearsay statements would come in, that the predicate had been laid according to the court's notes, and that he wanted to know whether the Government relied on the co-conspirator theory. Government counsel confirmed that this was the case and that part and parcel of the conspiracy was the identification and introduction by Jaramillo of the defendant Rivera to Special Agent Fuentes; that through the testimony of Fuentes it would be shown that on December 21 Jaramillo did introduce the defendant to Fuentes and following that Jaramillo continued to be involved in the setting up of actual distribution of cocaine. II R. 85-86.

Still in the absence of the jury, the judge said that on the basis of cases before him, he would ask immediately that they move on to identification of the source, Rivera. The judge cited United States v. Petersen, 611 F.2d 1313 (10th Cir.1979), cert. denied, 447 U.S. 905, 100 S.Ct. 2985, 64 L.Ed.2d 854 (1980), and United States v. Andrews, 585 F.2d 961 (10th Cir.1978). The judge found that there was a separate basis for the court to hold there was a conspiracy, citing the testimony of Maestas. ³ He stated he thought there was a basis for finding a conspiracy did exist; that the declarant and the defendant were members of it; and that Jaramillo's statement (which identified one of Jaramillo's cocaine sources) was made during the course and in furtherance of the conspiracy. These would be the court's findings, the judge added, subject to identification of the introduction of Jaramillo, Rivera and...