U.S. v. Rojo-Alvarez
| Decision Date | 03 June 1991 |
| Docket Number | AREVALO-GOME,ROJO-ALVARE,Nos. 90-1980,FRANCO-MONTOY,D,PALACIO-PERE,s. 90-1980 |
| Parties | UNITED STATES, Appellee, v. Alvaroefendant, Appellant. UNITED STATES, Appellee, v. Adalbertoefendant, Appellant. UNITED STATES, Appellee, v. Walter Antonioefendant, Appellant. UNITED STATES, Appellee, v. Carlosefendant, Appellant. to 90-1983. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
James T. Dangora, with whom Brian J. McMenimen and Boudreau, Burke & McMenimen, were on brief, for defendant, appellant Rojo-Alvarez.
Thomas F. Hallett, for defendant, appellant Franco-Montoya.
Peter L. Murray, with whom Jane Lee and Murray, Plumb & Murray, were on brief, for defendant, appellant Palacio-Perez.
Christopher W. Dilworth, with whom Dilworth & White, was on brief, for defendant, appellant Arevalo-Gomez.
F. Mark Terison, Asst. U.S. Atty., with whom Richard S. Cohen, U.S. Atty., was on brief, for appellee.
Before BREYER, Chief Judge, SELYA, Circuit Judge, and PETTINE, * Senior District Judge.
These cases, consolidated for appeal, involve a large-scale cocaine conspiracy. The four defendants, together, present a total of eleven issues for review. We affirm the district court on all eleven issues and believe that only four of those issues merit any detailed discussion.
In an attempt to reach major drug suppliers to the Maine drug market, government undercover agents negotiated a cocaine transaction involving the delivery of thirty kilograms of cocaine. The suppliers were based in New York, the buyers were fictitious, and the delivery was to take place in Maine. Initially, only nine kilograms of cocaine were supplied to the agents at a motel in Maine. The agents, in an effort to reach the suppliers at the top of the conspiracy, refused to pay for the nine kilos until the remaining twenty-one were supplied. As negotiations for the remaining kilos continued, the agents arrested lower echelon participants and convinced them to continue their participation on behalf of the government.
The government's plan progressed until Adalberto Franco-Montoya ("Franco"), charged with being the ringleader of the conspiracy, grew impatient waiting for the promised payment and sent his representative, Alvaro Rojo-Alvarez ("Rojo"), to Maine for it. If payment was not made, Rojo was to bring back the nine kilos of cocaine. Soon thereafter, Franco, himself, went to Maine accompanied by Walter Antonio Palacio-Perez ("Palacio") and Carlos Arevalo-Gomez ("Arevalo"). After discussions, the government agents agreed to return the nine kilos of cocaine. To facilitate its return, the agents placed the cocaine in the trunk of a car in a parking lot. The agents hid the key on the car's left rear tire. The four defendants were arrested soon after taking the cocaine from the parked car.
On June 16, 1989, the four defendants arrived at the lot. Under surveillance, Palacio took the key from the car tire and then retrieved the cocaine from the car trunk. Franco, Palacio, and Arevalo left the scene in the their own car but they were soon stopped by local police who were signalled by the government agents conducting the surveillance. The police arrested those three defendants and proceeded to search the car. In the hatchback, they found a black bag that matched the description of the bag the agents used to return the nine kilos. The police opened the bag and found the cocaine. Rojo was arrested a short distance from the scene.
After their arrest, the defendants were brought to an Immigration and Naturalization Service ("INS") Detention Center. They arrived at the Center at 9:15 p.m. Only Franco's experience at the Center is relevant to this appeal. While Franco was in custody, at 11:00 p.m., an INS agent read Franco his Miranda warnings in Spanish. He was not questioned at that time and, therefore, made no statements. Almost an hour later, after his booking, Franco was again read his rights. He responded, as he had the first time, that he understood his rights. This time, however, he indicated that he was willing to speak with agents. The conversation between Franco and the agents took place in English. There did not appear to be any language barrier.
All four defendants were indicted on June 20, 1989, charged with possession of more than five kilos of cocaine with intent to distribute and with conspiracy to do so. Franco first appeared before the United States Magistrate on June 27, 1989 at which time he entered a plea of not guilty and requested that the hearing on the government's detention motion be continued until June 30, 1989. On June 30, Franco waived hearing and his detention was ordered. The other three defendants appeared on that same day and pled not guilty. Rojo was ordered detained. Arevalo and Palacio were detained on July 7 and July 21 respectively.
On July 12, 1989, Franco filed pre-trial motions to suppress evidence and statements and to sever. Additional motions were also filed by the other defendants and the government presented a consolidated response. Hearing on these motions was originally set down for September 29, 1989, but upon motion of one of the defendants, the hearing was postponed until October 4, 1989. After the hearing, on December 4, 1989, the U.S. Magistrate recommended denial of the suppression motions. Chief Judge Carter adopted the Magistrate's recommendation and granted Franco's motion to sever on January 10, 1990.
Juries for both trials were empaneled on April 10, 1990. During the selection process for the three unsevered defendants, one potential juror told the court during voir dire, in the presence of the venire, that she worked for the Department of Corrections with juvenile sex offenders. She stated that in her experience with juvenile sex offenders, the victims generally tell the truth while the sex offenders "do not own up to what they've done," even after they have been through the court system. Rojo and Arevalo objected, contending that the other jurors would be biased by her comment that "defendants do not tell the truth." They requested, therefore, that the entire venire be dismissed. Judge Carter denied their request stating that any taint could be cured by an appropriate instruction which he would give at defense counsel's request. No such request was ever made.
Franco's trial began on the day of the empanelment, April 10, 1990. During the course of the trial, Franco took the stand in his own defense. On cross examination, the prosecutor sought to question Franco regarding a photograph in his immigration file ("INS file"). The photograph on file was not that of the defendant. Franco objected on the ground that questioning regarding the photograph was tantamount to the use of extrinsic evidence to prove bad acts in violation of Fed.R.Evid. 608(b). The photograph was never shown to, nor identified for, the jury as part of Franco's INS file. Judge Carter overruled Franco's objection finding that the government offered the photograph to show consciousness of guilt, not solely to impeach Franco's testimony. On April 12, 1990, the jury returned a verdict of guilty.
Franco's Presentence Report ("PSR") established a base offense level of 34. The level reflected negotiations for thirty kilos of cocaine with the agents. The base level was increased four levels, to 38, due to Franco's leadership role in the conspiracy. Most significantly, Franco received an additional two level increase, to 40, for obstruction of justice. The obstruction of justice increase suggested by the PSR was based on questions regarding Franco's identity. The fingerprints and photograph in the INS file of "Adalberto Franco-Montoya" were not a match with the defendant. Moreover, the passport that Franco submitted to the authorities in support of his claim that he was indeed "Franco" had been altered.
Having once come to light at his trial, the issue of Franco's identity was further explored at his sentencing hearing which began on September 14, 1990. To show that Franco had attempted to use a false identity, the government presented the photographs and fingerprints in the INS file and proved that they did not belong to the defendant. In addition, a government agent testified that the passport offered by the defendant was significantly altered and was actually two passports made into one. The agent, who had interviewed Franco did admit, however, that if the defendant was not Franco, "he is one of the best coached false claims I have ever come up against."
The defendant put his wife and sister on the stand and they testified that defendant was "Franco" and that they did not recognize the photograph in the INS file. Franco, himself, took the stand to explain the discrepancies. 1 He said that when he married and, thereby, became eligible for a green card, he would have had to go back to Colombia for an extended period in order to obtain a visa. Because he did not wish to be away from his business for so long, he hired a "stand-in" to process the papers in Colombia. Presumably, that stand-in is the person depicted in the INS file. Franco then testified that his passport was altered because, on a later trip to Colombia, he discovered, when he attempted to leave the country, that his passport had expired. He did not want to wait the ninety days that it would take to get a new passport. A friend, therefore, back-dated the passport and glued in a new front page.
Judge Carter found that the offense level of 40 suggested by the PSR was correct. The court concluded that the two level increase for obstruction of justice was warranted by Franco's submission of the altered passport. He also made specific findings with regard to the identity question. The court refused to credit the testimony of Franco's witnesses and found that the defendant was not the "Adalberto...
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