U.S. v. Ruiz

• Decision Date: 22 March 1993
• Docket Number: No. 92-7108,92-7108
• Citation: 987 F.2d 243
• Parties: 38 Fed. R. Evid. Serv. 551 UNITED STATES of America, Plaintiff-Appellee, v. Heriberto RUIZ, a/k/a Echeverry, Jorge Marisio-Gonzalez and Valentin Montero, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 243

987 F.2d 243

38 Fed. R. Evid. Serv. 551

UNITED STATES of America, Plaintiff-Appellee, v. Heriberto RUIZ, a/k/a Echeverry, Jorge Marisio-Gonzalez and Valentin Montero, Defendants-Appellants.

No. 92-7108.

United States Court of Appeals Fifth Circuit.

March 22, 1993.

Yale L. Galanter, Miami, FL, for Heriberto Ruiz.

Debra L. Allen, Jackson, MS (Court-appointed), for Marisio-Gonzalez.

Richard T. Starrett, Asst. U.S. Atty., George Phillips, U.S. Atty., Jackson, MS, for plaintiff-appellee.

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

Before POLITZ, Chief Judge, JOLLY, and DAVIS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Heriberto Ruiz-Echeverry and Jorge Marisio-Gonzalez appeal their convictions for conspiracy to import cocaine, and for felony possession of cocaine. Gonzalez also appeals from his conviction for interstate travel in aid of racketeering. ¹ We find no reversible error. We AFFIRM.

I

In the mid-1980s, Nelson Clavijo, Stephen and Jeffrey Giachelli, and others conspired to import cocaine from South America into the United States by concealing it in shipments of barbed wire.

The first shipment at issue here, which contained 900 kilograms of cocaine, arrived in Jackson, Mississippi, in August 1987. Carlos Moreno-Sanchez designed and oversaw the construction of false walls for concealment of the cocaine in the shipping containers. Prior to the arrival of the cocaine in 1987, Moreno traveled to Denver, Colorado, and recruited Montero and Gonzalez to assist in unloading the shipment. Moreno gave them enough cash to purchase airline tickets from Denver to Jackson. The co-conspirators, including Montero, Gonzalez, and Ruiz, met in Jackson and unloaded the cocaine. Later they rented a truck and took the cocaine to south Florida for distribution.

In June 1988, the co-conspirators imported a second shipment consisting of two containers of barbed wire in which 1750 kilograms of cocaine were concealed. As with the previous shipment, the co-conspirators, including Ruiz, met in Jackson and unpacked the cocaine. Later they rented trucks and took the cocaine to south Florida for distribution. Gonzalez and Montero did not participate in the 1988 shipment.

Moreno was arrested in January 1989, when he attempted to smuggle approximately 5,000 pounds of cocaine into the port of New Orleans, Louisiana. He pleaded guilty and agreed to cooperate with the government.

II

Ruiz and Gonzalez were charged in a multi-count indictment, along with Montero, the Giachelli brothers, Nelson and Ivan Clavijo, and Miguel Vargas. The Giachelli brothers and Vargas pleaded guilty. Vargas and Stephen Giachelli testified for the government at trial. Nelson and Ivan Clavijo are fugitives, and had not been apprehended at the time of trial. Ruiz was charged with (1) conspiracy to import, possess, and distribute 900 kilograms of cocaine in 1987; (2) possession of 900 kilograms of cocaine with intent to distribute it; (3) conspiracy to import, possess, and distribute 1750 kilograms of cocaine in 1988; and (4) possession of 1750 kilograms of cocaine with intent to distribute it. Gonzalez was charged with conspiracy and felony possession of cocaine with respect to the 1987 load, and with interstate travel in aid of racketeering. The jury found both defendants guilty. Ruiz was sentenced to 211 months of incarceration; Gonzalez was sentenced to 168 months of incarceration.

III

A

Prior to trial in November 1991, Ruiz requested a pretrial hearing to determine the admissibility of co-conspirator statements. The district court denied the motion. Ruiz contends that the district court erred by failing to make a preliminary determination that co-conspirator statements were admissible. In the alternative, he contends that the district court did not apply the required legal standard to determine the admissibility of such statements. We review these evidentiary rulings only for abuse of discretion. United States v. Triplett, 922 F.2d 1174, 1180-81 (5th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 2245, 114 L.Ed.2d 486 (1991).

(1)

As an initial matter, we reject the government's contention that Ruiz failed to identify adequately the co-conspirators' statements that he contends the district court erroneously admitted. See United States v. Valdez, 861 F.2d 427, 432 (5th Cir.1988) (defendant's failure to identify particular objectionable hearsay statements precluded review of district court's ruling), cert. denied, 489 U.S. 1083, 109 S.Ct. 1539, 103 L.Ed.2d 844 (1989). Valdez is distinguishable, because a portion of the record had been lost in that case, and the defendant's objections were too vague to permit meaningful appellate review. No such obstacles are present in this case. ²

(2)

Ruiz contends that the district court erred by failing to conduct a pre-trial hearing to determine the admissibility of co-conspirator statements. We disagree. In United States v. James, 590 F.2d 575 (5th Cir.) (en banc ), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979), our court held that such determinations need not be made prior to trial in all cases: "If [the district court] determines it is not reasonably practical to require the showing to be made before admitting the evidence, the court may admit the statement subject to being connected up." Id. at 582. The district court took that approach in this case, and did not abuse its discretion in doing so.

(3)

Ruiz also contends that the district court applied the wrong legal standard--a "prima facie test" rather than a "preponderance of the evidence" test--in determining that the co-conspirator statements were admissible.

As Ruiz correctly notes, co-conspirator statements are admissible only if the prosecution proves, by a preponderance of the evidence, "(1) that a conspiracy existed, (2) that the coconspirator and the defendant against whom the coconspirator's statement is offered were members of the conspiracy, and (3) that the statements were made during the course and in furtherance of the conspiracy." James, 590 F.2d at 582. The district court may consider the co-conspirator statements in determining whether the prosecution has met its burden. Bourjaily v. United States, 483 U.S. 171, 181, 107 S.Ct. 2775, 2781, 97 L.Ed.2d 144 (1987); see also Triplett, 922 F.2d at 1181.

At the close of the government's case, the district court made the following findings with respect to the existence of a conspiracy:

.... The Court first will make a ruling on the issue of the existence of conspiracies charged. The Court adopted the procedure of not holding a James hearing before allowing the witnesses to testify as to alleged statements made by co-conspirators.

The Court finds that there is ample evidence to make a prima facie case by a preponderance of the evidence, that the two conspiracies that are charged in the indictment did exist, that the Defendants who are on trial in this case and who are charged in the two separate conspiracies alleged in the indictment, the 1987 and 1988 conspiracies, were, in fact, members of the conspiracy, that the statements of co-conspirators who have been--which have been admitted into the record were made at times when the conspiracies existed and that they were made in furtherance of those conspiracies.

The district court's use of the phrase "prima facie case by a preponderance of the evidence" arguably is ambiguous. But see Triplett, 922 F.2d at 1181. Its ruling, however, when considered in context, clearly reflects that it applied the appropriate legal standard in making the required findings. Those findings are amply supported by the evidence.

B

Ruiz contends that the district court erred by admitting photographs of him with some of his co-conspirators, because the photographs are irrelevant and inflammatory. A customs agent took the photographs in Memphis, Tennessee, in July 1988. They depict Ruiz, Nelson Clavijo, and Vargas. We review the district court's evidentiary ruling for abuse of discretion. Triplett, 922 F.2d at 1180-81.

The photographs are relevant, because they depict Ruiz with his co-conspirators at a time when they were acting in furtherance of the conspiracy. Moreover, Ruiz does not explain, nor can we discern, how the photographs could be inflammatory or prejudicial. Accordingly, we conclude that the district court did not abuse its discretion by admitting the photographs.

C

Next, Ruiz contends that the district court committed reversible error when it limited his cross-examination of Moreno. Moreno was one of the leaders of the conspiracy. He was charged in a separate indictment, pleaded guilty, and testified against his co-conspirators. On cross-examination, counsel for Ruiz attempted to question Moreno about whether he had reported his earnings from his conspiratorial activities on his tax returns. The district court sustained the prosecutor's objection, ruling that the evidence was not relevant. The district court also limited Ruiz's attempt to question Moreno about whether he had lied to a state court judge who released him on probation. Between the 1987 and 1988 cocaine shipments, Moreno had pleaded guilty to state charges of kidnapping, and had promised, as a condition of his probation, that he would not commit any further crimes. Ruiz contends that this information was essential to his defense, because Moreno was one of the government's key witnesses, and his credibility was a crucial factor.

"Limitation of the scope and extent of cross-examination is a matter committed to the sound discretion of the trial judge reviewable only for a clear abuse of that discretion." United States v. Merida, 765 F.2d 1205, 1216 (5th Cir.1985).

Although the evidence Ruiz sought to elicit undoubtedly was relevant to Moreno's credibility and motive for testifying, much of it ultimately was before the jury. In response to Ruiz's questioning, Moreno admitted that he did not file tax returns in 1983 a...