U.S. v. Rivera

• Decision Date: 15 November 1985
• Docket Number: No. 84-7754,84-7754
• Citation: 775 F.2d 1559
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gilbert RIVERA and Albert Saul Platt, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1559

775 F.2d 1559

UNITED STATES of America, Plaintiff-Appellee, v. Gilbert RIVERA and Albert Saul Platt, Defendants-Appellants.

No. 84-7754.

United States Court of Appeals, Eleventh Circuit.

Nov. 15, 1985.

Erskine R. Mathis, Birmingham, Ala., for Rivera.

J. Stephen Salter, Groenedyke & Salter, Birmingham, Ala., David Goodhart, Goodhart & Rosner, P.A., Miami, Fla., for Platt.

Frank Donaldson, U.S. Atty., John C. Earnerest, Jr., Asst. U.S. Atty., Birmingham, Ala., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Alabama.

Before VANCE and HENDERSON, Circuit Judges, and DYER, Senior Circuit Judge.

DYER, Senior Circuit Judge:

Platt and Rivera appeal their convictions for aiding and abetting in possessing, with intent to distribute, approximately 100,000 Methaqualone tablets (commonly known as quaaludes) (Count 1). Platt appeals his conviction for using a telephone, on nine occasions, to cause and facilitate the possession of quaaludes with intent to distribute them (Counts 2-10). Platt asserts that the testimony of Weiss, the principal government witness, is incredible or unsubstantial on its face, that the district court erred in finding sufficient evidence to submit to the jury the nine telephone counts, and that the improper remarks of the prosecutor mandates reversal. He joins his co-defendant Rivera in asserting that it was error for the district court to rule that the government could impeach the testimony of Mogell, one of Platt's witnesses, thus requiring Platt to move to strike the testimony of this witness. Rivera also claims error in the district court's refusal to grant him a severance. We disagree with the contentions of both Platt and Rivera as to Count 1 and affirm as to both defendants. We agree with Platt that there is insufficient evidence to sustain his conviction on In 1981 Weiss was a dealer in illicit drugs. He met with Platt, Mogell and others in Miami, Florida to negotiate a deal. He had a pill making machine, and as a part of the deal the machine was to be transferred as collateral to Platt who was to provide approximately 350,000 methaqualone tablets to Weiss. They agreed how the pills would be sold and how the proceeds would be divided. Weiss said he could move the pills quickly through his contacts in Indiana. He contacted Rivera and instructed him to meet them in Ft. Lauderdale, Florida. Rivera did so and thereafter transported the quaaludes to Gary, Indiana. Sales went slowly there, but an undercover agent led Weiss to believe he could arrange a sale for the quaaludes in the Gadsden, Alabama area. Weiss went to a Ramada Inn in Atalla, Alabama, a Gadsden suburb, and Platt remained in Birmingham. The nine telephone calls in question were from Platt in Birmingham to Weiss in Atalla with one exception when Jackson, an undercover agent, answered the telephone in Weiss' room.

the nine telephone counts and reverse as to these.

Platt ultimately told Weiss that they could sell the quaaludes to a customer in the Tampa, Florida area. They returned to Florida, but Weiss was arrested in Broward County, Florida after he attempted to sell quaaludes to an undercover police officer.

WEISS' TESTIMONY

Platt argues that the combination of four factors show that Weiss' testimony was incredible. They are (1) the preferential treatment accorded Weiss by the federal government in disposing of numerous drug related convictions, (2) Weiss' perjurious character, (3) previous felonious acts by Weiss, and (4) defense evidence that undermines the testimony of Weiss.

There can be no doubt that Weiss was a drug dealer and an outlaw. He had been involved in several drug trafficking schemes. He entered into a plea agreement with the government on the present charges. The charge that Weiss perjured himself or that the defense evidence undermined Weiss' testimony, while bearing on Weiss' credibility are not factors in determining incredibility as a matter of law and were certainly matters wholly within the province of the jury. For testimony of a government witness to be incredible as a matter of law, it must be "unbelievable on its face." United States v. Cravero, 530 F.2d 666, 670 (5th Cir.1976). Further, "the fact that [the witness] has consistently lied in the past, engaged in various criminal activities, thought that his testimony would benefit him, and showed elements of mental instability does not make his testimony incredible." Id. In United States v. Garner, 581 F.2d 481 (5th Cir.1978) the court underlined the stringent rule that "for the testimony to be considered incredible, 'it must be unbelievable on its face', i.e., testimony as to 'facts that [the witness] physically could not have possibly observed or events that could not have occurred under the laws of nature.' " Id. at 485. (quoting Cravero, 530 F.2d at 670).

Under this test, Weiss' testimony was not incredible as a matter of law. A judgment of acquittal "is not required because the government's case includes testimony by 'an array of scoundrels, liars and brigands.' " United States v. Hewitt, 663 F.2d 1381, 1385 (11th Cir.1981), quoting United States v. Tiche, 424 F.Supp. 996, 1000-01 (W.D.Pa.), aff'd mem., 564 F.2d 90 (3rd Cir.1977). The jury's decision as to the credibility of Weiss will not be disturbed on appeal. United States v. Palacios, 612 F.2d 972, 973 (5th Cir.1980); United States v. Hewitt, 663 F.2d at 1386. Moreover, there was extensive corroboration of Weiss' testimony by witness Smith as to the meetings with Platt, the drug conversations and schemes, the agreement to purchase and distribute quaaludes, Platt's possession of Weiss' pill machine as collateral, the purchase of cheap suitcases in which to carry the quaaludes, and the travel together of Platt and Weiss. Jackson, an undercover operator (which Weiss did not know) recorded many conversations with Weiss in which numerous references are made to Platt and Rivero. Finally, the In the face of extensive impeachment of Weiss on cross examination concerning Weiss' bad acts and bad character the jury chose to believe him. There the matter ends.

motel registration signed by Platt at the Ramada Inn in Birmingham and the record of telephone calls made from there to Weiss gave corroborative substance to Weiss' testimony.

THE TELEPHONE CALLS

Counts Two through Ten of the Indictment charged Platt with using a telephone in Birmingham to call Weiss in Atalla, Alabama to cause and facilitate the felony of possession with intent to distribute methaqualone pills in violation of 21 U.S.C. Secs. 841(a)(1) and 843(b) (1976). Each count specified an exact time on June 27, 1981 that the calls were made. On one occasion (but without proof of which of the nine calls it was) undercover agent Jackson was in Weiss' room and answered a call from Platt in Weiss' absence. All that Platt said was that he needed to talk with Weiss right away. Other than this call the government's proof was that Platt called Weiss numerous times, but the calls were never identified as having been made at the precise times set forth in the indictment. The most incriminating evidence the government produced was that all calls were substantially the same, and in each one of them Platt asked Weiss "how are we doing with sales, and where is the money?" Given the fact that in our review of the sufficiency of the evidence it, and all reasonable inferences therefrom, must be viewed in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680, 704 (1942), and that our determination is limited to whether a reasonably minded jury must necessarily entertain a reasonable doubt of Platt's guilt, United States v. Rodriguez, 654 F.2d 315, 317 (5th Cir.1981); United States v. Bulman, 667 F.2d 1374, 1377 (11th Cir.), cert. denied, 456 U.S. 1010, 102 S.Ct. 2305, 73 L.Ed.2d 1307 (1982), we conclude that the evidence adduced by the government on Counts 2-10 was insufficient to sustain a guilty verdict.

The government relies on United States v. Phillips, 664 F.2d 971 (5th Cir.1981) (Unit B), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982) and United States v. McLernon, 746 F.2d 1098 (6th Cir.1984). In Phillips the court concluded that the evidence taken in context and in its totality showed that defendant Myers had a connection with a load of marijuana and that he gave assurances to co-defendant Meinster about the resolution of the problem of quickly disposing of the marijuana. This was sufficient to show that Myers' conversation with Meinster had the unlawful purpose of facilitating the commission of the illegal possession with intent to distribute. The court pointed out that:

[i]n order to prove a violation of 21 U.S.C.A. Sec. 843(b), the Government must establish that the defendant knowingly and intentionally used a communications facility, e.g., a telephone, to facilitate the commission of a narcotics offense. United States v. Rey, 641 F.2d 222, 224 n. 6 (5th Cir.1981). In order to establish the facilitation element, the Government must show that the telephone call comes within the common meaning of facilitate--'to make easier' or less difficult, or to assist or aid. United States v. Watson, 594 F.2d 1330, 1343 (10th Cir.), cert. denied, 444 U.S. 840, 100 S.Ct. 78, 62 L.Ed.2d 51 (1979).

664 F.2d at 1032.

We agree with the court's definition of "facilitation," and its finding, under the facts in Phillips, that facilitation was proved. But here, Platt's calls were simply to find out whether any sales had been made, and if so where was the money he was supposed to get. We fail to see how Platt's calls can be said to make easier or less difficult, or to assist or aid the possession with intent to distribute the methaqualone pills.

In McLernon the court held that the several telephone conversations must be considered in context and that in six calls the defendant Valdez "either informed the...