U.S. v. Rodriguez, 88-7689

• Citation: 917 F.2d 1286
• Decision Date: 08 November 1990
• Docket Number: No. 88-7689,88-7689
• Parties: 32 Fed. R. Evid. Serv. 40 UNITED STATES of America, Plaintiff-Appellee, v. Osvaldo RODRIGUEZ, a/k/a Osvaldo Hernandez-Marquez; Ricardo Leon, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1286

917 F.2d 1286

32 Fed. R. Evid. Serv. 40

UNITED STATES of America, Plaintiff-Appellee, v. Osvaldo RODRIGUEZ, a/k/a Osvaldo Hernandez-Marquez; Ricardo

Leon, Defendants-Appellants.

No. 88-7689.

United States Court of Appeals, Eleventh Circuit.

Nov. 8, 1990.

Domingo Soto, Madden & Soto, Mobile, Ala., for Leon.

Benjamin S. Waxman, Weiner, Robbins, Tunkey & Ross, P.A., Miami, Fla., for Rodriguez.

J.B. Sessions, III, U.S. Atty., Gloria Bedwell and William R. Sawyer, Asst. U.S. Attys., Mobile, Ala., for the U.S.

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

Before EDMONDSON, Circuit Judge, HILL ^* and HENDERSON, Senior Circuit Judges.

PER CURIAM:

Osvaldo Hernandez and Ricardo Leon were convicted on four counts of a five-count indictment after a trial in the United States District Court for the Southern District of Alabama. The jury found the defendants guilty of various drug related offenses, including conspiracy to import marijuana, 21 U.S.C. Sec. 963; importation of marijuana, 21 U.S.C. Sec. 952(a); possession with intent to distribute marijuana, 21 U.S.C. Sec. 841(a)(1); and conspiracy to possess with intent to distribute marijuana, 21 U.S.C. Sec. 846. The defendants were found not guilty of violating 21 U.S.C. Sec. 848, the operation of a continuing criminal enterprise. On appeal, Leon, who is Hispanic, urges that the district court erred in overruling as untimely his objection based on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). ¹ Both appellants complain of certain evidentiary rulings made by the district court, and they also claim that the government's failure to produce seven lost audio tapes constituted reversible error under the rule announced in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We affirm.

The Batson Claim

Leon contends that the prosecutor exercised her peremptory challenges in a discriminatory fashion in violation of Batson. ² He also asserts that the sixth amendment imposes a "fair cross-section of the community" condition upon the composition of petit juries and that the prosecutor's exercise of her peremptory challenges resulted in a violation of that requirement. ³ The government first maintains that the district court correctly ruled that Leon waived any objection to the prosecutor's exercise of her peremptory challenges. Alternatively, the government cites binding authority in this circuit which would prohibit Leon, an Hispanic, from raising an equal protection claim based upon the exclusion of black persons from the selection of a petit jury. See United States v. Rodriguez-Cardenas, 866 F.2d 390 (11th Cir.1989). The unusual circumstances evidenced by the record, which is unfortunately incomplete, warrant a conclusion that Leon objected in a timely fashion. ⁴ Assuming such, Rodriguez-Cardenas nonetheless forecloses Leon's claim. "Batson's equal protection rationale limits [Leon] to the claim that the prosecutor unfairly excluded Hispanics from the jury. [Leon does] not have standing, under Batson, to challenge the prosecutor's exercise of [her] peremptory challenges" to exclude five black persons. Rodriguez-Cardenas, 866 F.2d at 392. ⁵

The Evidentiary Issues

Hernandez and Leon next charge that the district court abused its discretion by excluding evidence offered to support their defense of entrapment. ⁶ Through the testimony of two government agents, Lawrence Winberg and Ernest Jacobsen, and Michael Brown, a prisoner who claimed to have been entrapped but who pleaded guilty to drug trafficking violations, the appellants hoped to expose the inducement tactics allegedly employed generally by government agents in the conduct of Operation Skymaster, a government undercover operation, and specifically by Ellis McKenzie, a confidential source relied upon by the government. Such evidence, they contend, would support their position that the government induced them to commit the offenses charged in the indictment, and they rely upon Fed.R.Evid. 404(b) and United States v. Cohen, 888 F.2d 770 (11th Cir.1989) as authority for the admissibility of this evidence.

Rule 404(b) forbids the admission of evidence of other acts solely to prove the character of a person as a means of showing that he acted in conformity therewith. Such evidence may be admissible, however, "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Fed.R.Evid. 404(b). In Cohen, this court reversed the Cohens' convictions because "[b]y preventing the introduction of relevant evidence of the prior conduct of an essential government witness, the [district] court deprived the Cohens from presenting an adequate defense and thus deprived them of a fair trial." Cohen, 888 F.2d at 777. The "relevant evidence" excluded would have established that the government's key witness, an executive with a carpet manufacturing company who pleaded guilty in the case in exchange for an agreement to testify against the Cohens, in the past had engaged in a scheme nearly identical to the one for which he and the Cohens were indicted and that he had concocted and managed the scheme without the knowledge of the manufacturer's former management. Such evidence would have demonstrated that the government witness had the wherewithal to devise and manage this second kickback scheme without present management's (the Cohens') knowledge and thus would have significantly affected the jury's consideration of the Cohens' guilt or innocence. In reversing, the court observed that where the proffered evidence bears a special relevance to a disputed issue and where no other practical means exist to prove the point, the trial court should admit the evidence. Id. at 776.

Here, both Winberg and Jacobsen testified extensively about the government undercover operation. During their testimony, the agents identified the various government operatives and confidential informants involved in Operation Skymaster and in the investigation and arrest of the appellants. They also disclosed the tactics which those operatives and informants employed to infiltrate the drug smuggling business and to gain the trust of the individuals involved in the illegal scheme. Both witnesses revealed that the agents and informants in this case, including Ellis McKenzie, had been involved in other similar cases, and they acknowledged that McKenzie had been paid for his efforts. The evidence excluded by the district court as irrelevant was proffered testimony that these agents and informants participated in the capture and arrest of a particular individual, Michael Brown. Such additional evidence would be relevant only if the testimony of Michael Brown was also relevant, that is, if Brown's testimony bore a special relevance to a disputed issue and if no other practical means existed to prove the point.

Leon and Hernandez sought to introduce the testimony of Brown as proof that Ellis McKenzie induced them to participate in the drug smuggling venture in the instant case just as he had induced Brown to smuggle marijuana on another occasion. However, though asserting generally that McKenzie "talked me into smuggling" and "hounded me," Brown failed to point to specific instances or concrete examples of such tactics sufficient to support a finding by the jury that McKenzie actually committed the prior similar act of inducing Brown. ⁷ That Brown pleaded guilty to certain drug offenses is one fact which supports a contrary conclusion. More important, however, is Brown's response to questions concerning the enticements and inducements offered by McKenzie. "Well, nothing--he didn't offer to pay me, if that's what you mean, no." ROA Vol. 8 at 1219. "In the Rule 404(b) context, similar act evidence is relevant only if the jury can reasonably conclude that the act occurred and that the [named individual] was the actor." Huddleston, 485 U.S. at 689, 108 S.Ct. at 1501, 99 L.Ed.2d at 782. Brown's plea of guilty coupled with his response tends to foreclose a conclusion that he was induced by McKenzie.

Further, unlike the situation in Cohen where there was evidence of a previous scheme identical to the one for which the defendants are being tried to show that they were ignorant of the instant scheme, Leon and Hernandez offer only general allegations that one individual was "hounded" into violating the law. There was neither specific evidence of how that occurred nor evidence that identical tactics were employed to induce Leon and Hernandez to commit these charged crimes. Absent such specificity and similarity, the manner in which one individual is ensnared by the government on another occasion is simply not relevant to whether these two appellants were likewise induced.

The proffer in this case clearly falls short of bearing a special relevance to the disputed issue of the government's inducement tactics. That Brown was captured via the government's undercover operation is not enough to make his testimony, or the testimony of Winberg and Jacobsen, relevant. " 'Relevancy is not an inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter properly provable in a case.' " Huddleston, 485 U.S. at 689, 108 S.Ct. at 1501, 99 L.Ed.2d at 782, quoting Advisory Committee's Notes on Fed.R.Evid. 401. Brown's testimony, considered in its entirety and in conjunction with the other admissible evidence, provides neither insight into nor reliable evidence about the tactics purportedly utilized by McKenzie so as to overcome the confusion and prejudice likely to result from testimony of a drug smuggling venture different from the one before the jury. Moreover, considering Brown's statement that he was neither enticed nor induced by McKenzie, we can conceive of no way that testimony of Brown's alleged entrapment could bear upon McKenzie's efforts to induce Leon and Hernandez....