U.S. v. Sanin

• Decision Date: 01 August 2000
• Docket Number: Docket No. 99-1442,AND,DEFENDANTS,MARTINEZ-OLAY,PASTOR-ALVARE,LOPEZ-ACENCI,VALENCIA-ECHEVERR,DEFENDANT-APPELLANT,A
• Citation: 252 F.3d 79
• Parties: (2nd Cir. 2001) UNITED STATES OF AMERICA, APPELLEE, v. JUAN IGNACIO SANIN, A/K/A JIMMY,, CARLOS MARIO/K/A ROBIN, CARLOS GUSTAVO BARAHONA, JUAN MANUEL/K/A ANDRES FELIPEJULIO CESAR
• Court: U.S. Court of Appeals — Second Circuit

Page 79

252 F.3d 79 (2nd Cir. 2001)

UNITED STATES OF AMERICA, APPELLEE, v. JUAN IGNACIO SANIN, A/K/A JIMMY, DEFENDANT-APPELLANT, CARLOS MARIO PASTOR-ALVAREZ, A/K/A ROBIN, CARLOS GUSTAVO BARAHONA, JUAN MANUEL VALENCIA-ECHEVERRI, A/K/A ANDRES FELIPE LOPEZ-ACENCIO, AND JULIO CESAR MARTINEZ-OLAYA, DEFENDANTS.

Docket No. 99-1442

August Term, 2000

UNITED STATES COURT OF APPEALS For the Second Circuit

Argued: May 10, 2001

Decided May 25, 2001

Appeal from a judgment of the United States District Court for the Southern District of New York (Miriam Goldman Cedarbaum, Judge) denying Defendant-Appellant Juan Ignacio Sanin's 28 U.S.C. § 2255 motion to vacate his conviction and sentence. Because we find that the issues presented in Sanin's § 2255 petition were fully litigated on direct appeal, and because there has been no intervening change in the law entitling Sanin to revisit issues already decided, Sanin's appeal is procedurally barred.

Affirmed.

Lawrence Mark Stern, New York, N.Y., for Defendant-Appellant.

Thomas M. Finnegan, Assistant United States Attorney for the Southern District of New York, New York, N.Y. (Mary Jo White, United States Attorney, Robin L. Baker, Assistant United States Attorney, on the brief) for Appellee.

Before: Oakes, Winter, and Straub, Circuit Judges.

Per Curiam

Defendant-Appellant Juan Ignacio Sanin appeals from a decision of the United States District Court for the Southern District of New York (Miriam Goldman Cedarbaum, Judge) denying Sanin's motion, made pursuant to 28 U.S.C. § 2255, to vacate his conviction and sentence. On appeal, Sanin contends that the Supreme Court's decision in Gray v. Maryland, 523 U.S. 185 (1998) constitutes a new rule of constitutional law which requires us to set aside his conviction and order a new trial. Sanin argues that his Sixth Amendment rights were violated when a post- arrest statement made by a non-testifying co-defendant was admitted at trial. However, because this issue was already litigated during Sanin's direct appeal, and because we find that Gray does not establish a new rule of constitutional law upon which Sanin can reopen issues previously decided, we hold that Sanin is procedurally barred from relitigating whether his Sixth Amendment right to confront witnesses was denied.

FACTUAL AND PROCEDURAL BACKGROUND

On March 30, 1993, an indictment was filed charging Sanin and several co-conspirators with conspiracy to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846, and distribution and possession of cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B) and 18 U.S.C. § 2. While two of Sanin's co-defendants pled guilty, Sanin and two others proceeded to trial which commenced on August 2, 1994.

At trial, the government demonstrated that in 1992 and 1993, Sanin supervised a narcotics ring that attempted to transport large quantities of cocaine from Los Angeles to New York. Beginning in 1992, Sanin and several other conspirators arranged to have approximately 500 kilograms of cocaine arriving from Columbia driven from Los Angeles to New York.

Sanin recruited several other members of the conspiracy including Franciso Arredondo, who, unbeknownst to Sanin, was a confidential informant employed by the United States Customs Service. In February 1993, the first shipment of cocaine, approximately 48 kilograms, was driven to New York and sold to local distributors. In late February 1993, two members of the ring were bound for New York with a second shipment of cocaine when they were arrested in Utah. At the same time, Sanin directed Carlos Gustavo Barahona to drive a third shipment to New York, giving him an airline ticket to fly to Los Angeles and directions for obtaining a van to transport the cocaine. After the shipment arrived in New York, Arredondo informed Drug Enforcement Agency ("DEA") agents where the van containing the cocaine was garaged. On the same day, Sanin negotiated the sale of 25 kilograms of cocaine to a DEA agent working undercover. On March 3, 1993, DEA and U.S. Customs agents seized the van, which had been emptied of its cargo except for one kilogram of cocaine apparently missed by whomever emptied the van. Meanwhile, other agents arrested Sanin, Barahona, and the other members of the conspiracy.

Abundant evidence was presented to the jury regarding Sanin's involvement in the narcotics ring, including the testimony of Arredondo and the undercover DEA agent. Among the evidence introduced was a statement made by Barahona soon after he was arrested. Two government witnesses testified about Barahona's post-arrest statement. First, a United States Customs Special Agent who arrested Barahona testified that soon after Barahona was taken into custody, Barahona agreed to cooperate and described the activities of the narcotics ring. After counsel for defense objected to the use of leading questions and to the use of the post-arrest statement because of its prejudicial effect on co- defendants, the court instructed the jury that "the statement you have just heard and may hear more of, regarding Carlos Barahona, is received in evidence only as against him.... This is only received as to Carlos Barahona, and it is not evidence against the other two defendants." The agent then testified that Barahona told the arresting agents that he had been "recruited by other members in this organization...." After the agent concluded his testimony, defense counsel again objected to the use of the statement, initiating the following exchange out of the presence of the jury:

Defense Counsel: Your honor, may I make a motion at this point? [The agent] testified, when he was supposed to be redacting the statement, he referred to other members of the organization. I move to strike that because it is too specific, although he didn't mention the proper names of those people, I think it is improper. I think he could have said "others."

Court: You are talking about his statement that there was an organization. I have told the jury that they may not use that as to any defendant in this case.

Defense Counsel: I understand, but doesn't Bruton tell us you cannot specifically refer to the other defendants on trial. And just by using their proper names, that is one way, but you cannot then describe them.

Prosecutor: Your Honor, if I may be heard just briefly on this. If you think about the statement, in other words, another member of the organization was shipping the cocaine supplied him, with the tickets to go out to L.A. Obviously, it had to be somebody from the organization. It does not indicate -

Court: [] [C]ome on, after there has been testimony that it was Mr. Sanin? It think it has been well-taken. I will tell the jury that I strike that one statement.

Court: [to the jury after recess] There was one sentence in the statement that was testified to before that I would like to strike. The reference to "other persons" should be stricken from the record and you should forget it.

Later during the trial, a DEA Special Agent, also present at Barahona's arrest, gave further details of Barahona's post-arrest statement. Prior to the agent's testimony, the court discussed aspects of the agent's testimony out of the presence of the jury. The prosecution agreed to instruct the agent not to use the proper names of defendants on trial when discussing Barahona's statement. Instead, the prosecutors offered to instruct the agent to use the words "some people" instead of the proper names of defendants. Defense counsel objected to the use of the word "people," arguing that "[t]here is other evidence in the case which is going to identify who those other people are." While the District Court stated that the proposed substitution of "some people" sufficiently protected the rights of the defendants, it asked the prosecution to instruct the witness not to use the word "people" when describing who provided Barahona with airline tickets. In open court, the judge again instructed the jury that "this statement by Carlos Barahona is received in evidence only as against Barahona and cannot be used as evidence against the other two defendants." The agent then testified that "[Barahona] stated that in January of 1993, several individuals came up to him with a proposal. The proposal was to drive a vehicle from Los Angeles to New York.... Approximately on February 22 of that year, these individuals again approached Mr. Barahona and asked him if he would be willing to drive another vehicle from Los Angeles to New York." As instructed, the witness avoided the use of the term "other people" when describing who provided Barahona with airline tickets, simply stating that "Mr. Barahona... was provided with an airline ticket and a vehicle."

The trial ended on August 11, 1994 when Sanin and his co-defendants were convicted on both counts charged in the indictment. After Sanin's conviction, he and several of his co-defendants moved to vacate their convictions and for a new trial. Sanin argued, inter alia, that the admission of the post-arrest statement of Barahona violated his due process, fair trial, and confrontation rights. The District Court denied the motion, noting that the statements had been properly redacted and a limiting instruction had been given to the jury. After resolving all post-trial motions, Sanin was sentenced to 200 months' imprisonment, to be followed by a five year term of supervised release. On direct appeal before this Court, Sanin renewed the claims made before the District Court, arguing, inter alia, that under Bruton v. United States, 391 U.S. 123 (1968), his confrontation rights had been violated by the admission of Barahona's post-arrest statements. We rejected Sanin's claims by summary order. See United States v. Sanin, No. 96-1417, 1997 WL 2800083, 113 F.3d 1230 (2d Cir. May 23, 1997) (unpublished). On March 23, 1998, the United States Supreme Court denied Sanin's petition for a writ of...