U.S. v. Rodriguez

• Decision Date: 23 July 1985
• Docket Number: No. 84-5178,84-5178
• Citation: 765 F.2d 1546
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Arturo RODRIGUEZ, Vincente Ramirez, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1546

765 F.2d 1546

UNITED STATES of America, Plaintiff-Appellee, v. Arturo RODRIGUEZ, Vincente Ramirez, Defendants-Appellants.

No. 84-5178.

United States Court of Appeals, Eleventh Circuit.

July 23, 1985.

Marc Cooper, Greene & Cooper, P.A., Miami, Fla., for A. Rodriguez.

Howard Sohn, Sharon L. Wolfe, Miami, Fla., for V. Ramirez.

Stanley Marcus, U.S. Atty., Leonard F. Baer, Jon May, Linda Collins Hertz, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

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

Before VANCE and ANDERSON, Circuit Judges, and HENLEY ^*, Senior Circuit Judge.

HENLEY, Senior Circuit Judge:

Arturo Rodriguez and Vincente Ramirez were both charged with conspiracy to distribute cocaine, two counts of assaulting federal officers, theft of government property, and use of a firearm in the commission of a felony. Rodriguez was convicted on the conspiracy count and acquitted of the substantive charges. Ramirez was convicted on the two assault counts and the theft count but acquitted of conspiracy and of using a firearm in the commission of a felony. Both appellants raise a variety of issues on appeal. Rodriguez challenges the sufficiency of the evidence and contends that prejudicial variance between the indictment and the evidence at trial deprived him of a fair trial. He also alleges the district court ¹ committed reversible error by failing to be available to answer a question from the jury, and that it erred in considering hearsay before imposing sentence. Ramirez contends that certain discovery violations by the government resulted in an unfair trial. In addition he argues that both the prosecutor and the district court made prejudicial remarks to the jury and challenges the admission into evidence of two handguns and a silencer. We affirm the convictions.

I. BACKGROUND.

The investigation of appellants began in August of 1983 when Jose Rios, an informant for the Drug Enforcement Administration (DEA), telephoned Rodriguez from Puerto Rico in an attempt to set up a cocaine transaction. ² As a result of this and subsequent telephone conversations, Rodriguez agreed to find a supplier of cocaine for Rios in Miami. Shortly thereafter, Rios and DEA Agent Felix Jimenez traveled from Puerto Rico to Miami to close the deal.

Jimenez and Rios arrived in Miami on August 23, 1983, checked into a hotel, and met with Rodriguez. Rodriguez was shown about $60,000.00 to be used to purchase the drugs. Rios and Rodriguez then left the hotel to look for Rodriguez's supplier. They first went to see an individual named Felipe who told them that Octavio was out looking for three kilograms of cocaine. Rios and Rodriguez then left Felipe's apartment and went to see an individual named Tello. While at Tello's apartment, they met Rodolfo, "the Peruvian." Rodriguez told Rios that Rodolfo was a good friend of his and that Rodolfo moved a lot of "material."

Rodolfo agreed to sell them one kilogram of cocaine, and after that was paid for he would sell them two kilograms more. Rios explained that the exchange would have to be postponed until after he had spoken with his brother-in-law, Jimenez, since he was in possession of the money. ³ Rios told Rodolfo he would contact him (Rodolfo) through Rodriguez the next morning.

Soon after Rodolfo left, Octavio arrived with a quantity of cocaine. Rios told Octavio that a deal had already been arranged with Rodolfo but that perhaps they could do business another time. Rios and Rodriguez then returned to the hotel with the understanding that the deal would go through the next day.

The next morning Rodriguez called Rios and told him to get ready to close the deal and that he had found another source for the cocaine. Rodriguez subsequently arrived at the hotel and stated that the deal was set for later that morning. Rodriguez was to receive a $6,000.00 commission for arranging the transaction. He told Jimenez to put $87,000.00 in a paper bag and to wrap his commission separately in toilet paper.

After further discussion, Rios and Rodriguez left to pick up the cocaine and bring it back to the hotel so that Jimenez could inspect it. The two drove to Felipe's apartment where they met a different Octavio, later identified as actually being Rafael Morla. Appellant Ramirez, Felipe, and an unidentified individual were also present. Rodriguez told Rios that these individuals owned the cocaine. Ramirez showed Rios three bags containing white powder and told him to test it. Rios declined, stating that he trusted them. Ramirez offered his car to use to go back to the hotel to make the exchange. Ramirez, Rodriguez, Rios and Morla then walked to a black Buick, ostensibly placed the cocaine in the trunk, and drove to the hotel.

When they arrived at the hotel, both Ramirez and Morla wanted to go up to the hotel room to see the money. Rios protested this but eventually agreed to take one of them, Morla, while Ramirez and Rodriguez waited near the car.

Morla and Rios then went to Jimenez's room. Morla used the bathroom, came out and began to count the money. After being assured that the briefcase contained $100,000.00, Morla began to search the room. While he was searching, Jimenez slipped the briefcase under the bed. Morla then suddenly pulled out a pistol, flashed a badge, and told Rios and Jimenez they were under arrest. Morla handcuffed their right hands together and used a coat hanger to tie their left hands. Jimenez told Morla where the money was after Morla threatened to kill him. Morla then gagged Rios and Jimenez with towels and searched and emptied their pockets. When he tried to place a mattress over them, Rios stated that Morla was going to kill them. Jimenez begged for his life but Morla demanded to know where the rest of the money was. Jimenez indicated there was no more and Morla again looked around the room. At that moment, Jimenez somehow partially freed himself, grabbed a gun hidden under a pillow, and fired at Morla. Morla then ran out of the room.

By the time other DEA agents began to move in, Morla had made it to the car and he and Ramirez attempted to drive away. The agents shot at the car's radiator and engine block, however, disabling it. Morla was shot and killed when he got out of the car and began shooting at the officers. Ramirez ran from the car, allegedly firing shots at the agents with a pistol. Both Ramirez, who was wounded in the gun battle, and Rodriguez were subsequently apprehended not far from the scene of the shooting. The weapon allegedly fired by Ramirez was never found. In addition, no cocaine was found in the trunk of the automobile although two handguns, a silencer, and handcuffs were found hidden in the dashboard.

As stated, the jury convicted Rodriguez of one count of conspiracy to distribute cocaine and convicted Ramirez of two counts of assaulting a federal officer and one count of theft of government property. Rodriguez was sentenced to thirteen years imprisonment while Ramirez received consecutive sentences of ten, ten and seven years imprisonment, for a total of twenty-seven years.

II. DISCUSSION.

A. Rodriguez

Sufficiency of the Evidence.

Rodriguez contends that the evidence is insufficient to sustain his conspiracy conviction. He contends the evidence only shows he conspired with Rios, Jimenez and Ramirez to distribute cocaine. He argues that since Rios and Jimenez were government agents incapable of conspiracy, and because Ramirez was acquitted, there was no one with which he could have conspired.

We begin by stating the general rules which govern our analysis.

[T]he standard of review is whether "a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt." In prosecutions for conspiracy to distribute narcotics under 21 U.S.C. Sec. 846, the essential element is an agreement by two or more persons to violate the drug laws. The existence of such an agreement may be proved by either direct or circumstantial evidence, including "inferences from the conduct of the alleged participants or from circumstantial evidence of a scheme." A defendant may be found guilty of conspiracy if the evidence demonstrates that he knew the essential objective of the conspiracy, even if he did not know all its details or played only a minor role in the overall scheme.

United States v. Walker, 720 F.2d 1527, 1538 (11th Cir.1983) (citations omitted), cert. denied, --- U.S. ----, 104 S.Ct. 1614, 80 L.Ed.2d 143 (1984).

The government acknowledges that Rios and Jimenez cannot be considered parties to the illegal agreement since government agents and informers cannot be conspirators. See United States v. Elledge, 723 F.2d 864, 866 (11th Cir.1984). The government also does not rely on Ramirez as a conspirator since he was acquitted. See United States v. Pearson, 667 F.2d 12, 13 (5th Cir. Unit B 1982) (per curiam) (where all alleged conspirators are tried jointly and all but one are found not guilty, the remaining conviction may not stand, for one cannot conspire with himself); United States v. Espinosa-Cerpa, 630 F.2d 328, 330-33 (5th Cir.1980). Accord United States v. Albert, 675 F.2d 712, 713 (5th Cir.1982); United States v. Sheikh, 654 F.2d 1057, 1062 (5th Cir. Unit A 1981), cert. denied, 455 U.S. 991, 102 S.Ct. 1617, 71 L.Ed.2d 852 (1982).

Nevertheless, "a defendant may be convicted of conspiring with persons whose names are unknown or who have not been tried and acquitted, if the indictment asserts that such other persons exist, and the evidence supports their existence and the existence of a conspiracy." Sheikh, 654 F.2d at 1062; see United States v. Mulherin, 710 F.2d 731, 737 (11th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 1305, 79 L.Ed.2d 703 (1984). The government asserts that there are at least three other people with whom Rodriguez conspired, namely, Rodolfo, Felipe and the first Octavio. We need not decide if Felipe and Octavio were conspirators, for it...