U.S. v. Rivero, 75-1577

• Decision Date: 28 May 1976
• Docket Number: No. 75-1577,75-1577
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eligio Fermin RIVERO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 450

532 F.2d 450

UNITED STATES of America, Plaintiff-Appellee, v. Eligio Fermin RIVERO, Defendant-Appellant.

No. 75-1577.

United States Court of Appeals, Fifth Circuit.

May 28, 1976.

Nicholas J. Capuano, Richard M. Gale, Miami, Fla., for defendant-appellant.

Robert W. Rust, U. S. Atty., Samuel A. Alter, Jr., Asst. U. S. Atty., Miami, Fla., Samuel Sheres, Narcotics and Dangerous Drugs Section, Crim. Div., Dept. of Justice, Washington, D. C., for plaintiff-appellee.

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

Before BROWN, Chief Judge, GOLDBERG and RONEY, Circuit Judges.

JOHN R. BROWN, Chief Judge:

Rivero's appeal from his conviction of attempting to distribute approximately 11 kilos nearly 22 pounds of cocaine ¹ (Count I) and the dependent but distinguishable crime of unlawfully carrying a firearm during the commission of a federal felony (Count II) ² turns to a great extent on the admissibility of evidence of a relatively miniscule 2 grams of cocaine, one of the precise crimes charged in an earlier indictment which was dismissed with prejudice ³ by the Government prior to the return of the indictment in the case now before us.

Rivero attacks these convictions ⁴ on the grounds of (a) insufficient evidence to establish attempt rather than mere preparation, (b) the use of testimony concerning the two grams of cocaine in view of (i) failure of the Government to obtain leave to amend the bill of particulars, (ii) the dismissal with prejudice of the earlier two gram indictment, and (iii) the refusal of the Trial Court to allow evidence of such dismissal, (c) insufficiency of the evidence on the firearm charge that carrying the conceded weapon was unlawful and, finally, (d) the Court's refusal to require the Government to produce the grand jury testimony of undercover agent Marin given in the earlier dismissed indictment.

We reject (a), (b), (c) and conditionally affirm the convictions subject to further findings and determination by the Trial Court as to (d), the grand jury testimony of Marin.

What Happened

As the mere preparation-attempt problem inescapably depends on the particular facts, we detail them through Glasser ⁵ glasses largely as stated in the Government's brief. From that point of view Rivero cannot seriously contradict them except, of course, as to the testimony of Rivero himself which, admitting many of the physical facts of meetings, etc. was exculpatory in motive and action.

The facts began to unfold on April 24, 1974 when Defendant Rivero was introduced to a paid government informer, Ms. Sara Cook, by a man named Zamora. On previous occasions Sara Cook, while acting as an informer, had purchased drugs from Zamora.

About a month later, on May 22, 1974, Rivero visited Sara Cook in her apartment and they discussed possible future narcotics transactions. Later that same afternoon Rivero called Sara Cook and told her he had to see her about something very important. At about 10:00 p. m. that night Sara Cook met Rivero at his apartment and he asked her if she could find her friend Jose (Agent Jose Marin), because Rivero's friend had received a shipment of cocaine and wanted to sell it. Rivero told Cook that other people were also looking for Marin for the purpose of selling the cocaine to him. Cook reassured Rivero that Marin would not deal with others and that she had already spoken to him about this matter. Rivero stated that his unidentified partner would sell the cocaine to him at $13,000 per kilo and that they could then sell it to Marin for $20,000 per kilo. Rivero and Cook set up a meeting for the next morning.

The next morning, May 23, 1974 Rivero came to Cook's apartment and asked if she had spoken to Marin. She told him that she had and Marin would be over in a few minutes. Rivero then took a sample of cocaine rolled in a one dollar bill, sampled it and then placed it in a kitchen drawer.

Agent Marin arrived at the apartment approximately two hours later and was introduced to Rivero by Cook. With Cook present Rivero showed Marin the kitchen drawer which contained the cocaine sample. Agent Marin then ran a field test by burning some cocaine in a piece of aluminum foil and stated to Rivero that the cocaine was of good quality and that they could do business. Rivero wanted money "up front" so Rivero and Agent Marin began negotiations. Rivero further stated that his partner would not distribute the full 11 kilos but only in three or four kilo lots, because he was afraid of a rip-off or of dealing with federal agents.

Rivero then called his partner and told him to wait for him because the business would be completed in one hour so Marin and Rivero continued to bargain over the price of the cocaine, with Marin demanding a lower price and Rivero countering that he could not sell it at less than.$19,000 per kilo, a total of $209,000. Marin replied that he only had $200,000 and Rivero then agreed to accept the $200,000. Marin refused to pay Rivero $50,000 in advance because, so he stated, he did not know who Rivero was or where he lived. Rivero, as security for the "up front" money he was requesting, then offered the key to his apartment, where he had $50,000. Marin still demanded to see the cocaine before paying any money.

Thereafter they reached an agreement by which Rivero would take Marin to the source's house, Rivero would go inside the house and bring back a certain amount of cocaine. Once Marin had seen it he could give Rivero the money and Rivero could go back in and pay for the drugs. Rivero then made a phone call and advised the person on the other end to get everything ready because the deal would take place in approximately 45 minutes. After agreeing to meet later at Rivero's grocery store Marin and Rivero then left Cook's apartment about 11:30 a. m.

Marin met Rivero about 1:00 p. m. at Rivero's grocery store. While there Marin saw Rivero speaking with two individuals, Zamora and Bernado Linares. One of the men carried a shopping bag and the other carried a see-through bag that contained a small box. After his conversation with the two men Rivero returned to talk to Marin. At this time he again demanded money in advance but this time he only asked for $15,000. Rivero told Marin that he had about $40,000 in jewelry that he would put up as collateral and that when given the $15,000 advance money he would return with the cocaine to be paid the balance, and retrieve his jewelry. Marin refused and when Rivero told him that his partner suggested he make this offer Marin suggested he give the jewelry to Rivero's partner as collateral. Rivero said he would ask, left the parking lot where the two had been conversing and went back into the grocery store for approximately five minutes. When Rivero returned he was carrying a large paper bag and again argued for about 20 minutes about advance money. Rivero asserted he had shown a lot of faith in bringing Marin to his business and did not understand why Marin would not advance the $15,000. Marin told Rivero he was not interested in jewelry and would pay the cash only when he saw the cocaine. Rivero then asked Marin to drive him downtown to a bank where he had a friend who would give Rivero $15,000 for his jewelry so that he could then consummate the deal with Marin.

They left shortly in Marin's car. On the trip Rivero said he would give Marin directions and soon thereafter Rivero opened a box similar to the one Marin earlier saw Zamora carrying. Rivero showed Marin several pieces of jewelry and again said he would be willing to give all of this in exchange for $15,000 and could not understand why Marin was not willing to do business in this manner.

With Agent Marin driving, the automobile proceeded south toward the Dade County metropolitan area and was pulled over by a battery of surveillance officers. During the execution of the arrest Rivero pulled a loaded Detective Special .38 caliber Colt revolver from his waistband and aimed it at the arresting officers.

Preparation Versus Attempt

With Judge Rives' extended scholarly opinion for the Court in Mandujano ⁶ which canvassed the law from ancient to modern times, including the proposed Model Penal Code, the proposed definitions of the National Commission on Reform of Federal Criminal Laws and contemporary tests adopted by a number of the states, it would be an affectation for us to restate or attempt to distill the law's acceptable quest for an easy-to-apply verbal articulation of the elusive term "attempt" as used in this and other statutes. To Mandujano should also be added Oviedo. ⁷ Without adding to, distinguishing or diluting in the slightest degree what these cases hold and say, the key to this case is found in the almost black-letter of Mandujano.

First, the defendant must have been acting with the kind of culpability otherwise required for the commission of the crime which he is charged with attempting. . . .

Second, the defendant must have engaged in conduct which constitutes a substantial step toward commission of the crime. A substantial step must be conduct strongly corroborative of the firmness of the defendant's criminal intent. ⁸ 499 F.2d 370, 376.

The facts as recited in detail meet every conceivable test in the potpourri of Mandujano with Oviedo's requirement that "the objective acts performed, without any reliance on the accompanying mens rea, mark(ed), the defendant's conduct as criminal in nature." And credited as they were by the jury's verdict, the facts more than ever fit Oviedo's demand that the acts ". . . should be unique rather than so commonplace that they are engaged in by persons not in violation of the law."

In the light of the detailed facts showing, on the Government's case, that Rivero was pegged time and time again with acts looking toward the sale of about 11 kilos of cocaine at a price that would net him a tidy $60,000 in profit for a day's work only a reprise is necessary to bring this to a...