U.S. v. Soberon, 90-3244

• Decision Date: 12 April 1991
• Docket Number: No. 90-3244,90-3244
• Citation: 929 F.2d 935
• Parties: UNITED STATES of America, Appellant, v. Andres SOBERON, Armando Cartaya, Franklin Pena.
• Court: U.S. Court of Appeals — Third Circuit

Page 935

929 F.2d 935

UNITED STATES of America, Appellant, v. Andres SOBERON, Armando Cartaya, Franklin Pena.

No. 90-3244.

United States Court of Appeals Third Circuit.

Argued Jan. 8, 1991.

Decided April 3, 1991.

As Amended April 8 and April 12, 1991.

Constance M. Bowden (argued), Office of United States Attorney, Pittsburgh, Pa., for appellant.

Neil M. Nameroff (argued), Miami, Fla., for appellee, Andres Soberon.

Charles J. Porter (argued), Brucker, Witherel & Zappala, Pittsburgh, Pa., for appellee, Armando Cartaya.

Lee Markovitz (argued), Pittsburgh, Pa., for appellee, Franklin Pena.

Before COWEN, ALITO and ROSENN, Circuit Judges.

OPINION OF THE COURT

COWEN, Circuit Judge.

This criminal appeal concerns the propriety of the district court dismissing two counts of an indictment against three defendants charged in a conspiracy to distribute cocaine. The district court dismissed the indictment because it concluded that a government agent committed perjury at the grand jury hearing in which the indictment was obtained. The district court found that use of allegedly perjurious testimony in obtaining the indictment amounted to prosecutorial misconduct and warranted dismissal of the indictment.

We find that the district court erred in dismissing the charges against one defendant on the basis of prosecutorial misconduct without a finding that the defendant had been prejudiced. We will, therefore, reverse the dismissal of charges against that defendant. Secondly, we find that the district court's conclusion that the government agent committed perjury before the grand jury and that the government committed prosecutorial misconduct by seeking an indictment based on this testimony was clearly erroneous. Accordingly, we will reverse the dismissal of the indictment against the second defendant. Finally, we will reverse the dismissal of the charges against the remaining defendant because he was not before the court at the time.

I.

On August 14, 1988, Carrie Abraham and Daniel Bruno were arrested at the Greater Pittsburgh International Airport and charged with possessing with intent to distribute two kilograms of cocaine. The police found the cocaine in a suitcase Abraham had transported from Florida. As part of a plea agreement, Bruno and Abraham agreed to assist the Federal Bureau of Investigation ("F.B.I.") in arranging to buy cocaine from their sources.

After a series of preliminary telephone calls, Bruno and Abraham arranged a "buy." On May 2, 1989, Bruno and several F.B.I. agents traveled to Florida where Bruno was supposed to meet Cartaya to buy the cocaine. Once in Florida, Bruno, Special Agent Linda Lee (posing as Bruno's girlfriend), and Special Agent Peter McCann checked into adjoining hotel rooms. The FBI agents wired Bruno's room so that they could record conversations that took place there. On May 3, Bruno called Cartaya to make the buy. But, Bruno was unable to reach him so he called Soberon. Soberon told Bruno that he would send a "buddy" to his hotel room to pick up his "receipts" and that his friend would return a couple of hours after obtaining the "receipts." App. at 1112-13. Soberon's "buddy" turned out to be Franklin Pena, the third defendant in this case.

Later that day, defendant Pena arrived at Bruno's hotel room where Bruno and Agent Lee were waiting. Agent McCann was in the adjoining room recording what was said. Bruno and Agent Lee had a package of money, which they planned to give to Pena in exchange for the cocaine. Pena told Bruno and Agent Lee to take "it" (the package) to the bathroom and he would place "it" in his "fly." Pena then told Bruno that he should call Soberon in two hours. App. at 25-26. When Bruno asked Pena whether he was going to count "it" (the money in the package), Pena replied that he would just take "it" with him. App. at 26. When Agent Lee objected to the manner in which the deal was being conducted, Pena responded "that's the way he [presumably Soberon] wants it," and indicated that he would call "him" and tell "him" that Lee did not want to "do it that way." App. at 28, 31. Pena was then arrested.

After Pena's arrest, Bruno had two telephone conversations with Soberon and one with Cartaya regarding when and how the cocaine would be delivered. Soberon was arrested later that day. Because Cartaya could not be found, however, he was not arrested until after the drug trial against Pena and Soberon had begun.

At the grand jury hearing, the government presented several witnesses regarding Cartaya's, Pena's, and Soberon's activities in order to support the issuance of an indictment against them. In particular, Agent McCann described the conversation between Pena, Bruno, and Agent Lee which he recorded from the adjoining hotel room. Agent McCann testified that:

Mr. Pena came in and was granted access to the room and they had a conversation where he indicated he was sent there to pick up to the receipts, it's what they were referring to the money as, and that our girl was resisting letting the money walk, leave the room. We are not permitted to [let] the money leave under those kind of conditions. It has to stay in the care and custody of the agent.

So there was a conversation about she didn't want to do it that way and Mr. Pena indicated, fine, you'll have to call the guy and we'll do it some other way. He guaranteed her and Bruno that there'd be no problem, that the deal would go through. She offered to have him count it if he wished. He didn't even want to count the money. He just said that his job was to come over and pick up the money, take it back and in two hours they would have the dope.

Everyone was getting mixed up on the Andy [Soberon] and Mandy [Cartaya] thing and he said that, ... I would quote him, he said, "Actually it's Armando and Andy," speaking about Mandy and Andy. And he indicated also in that conversation that although everybody was talking to Andy on all these phone calls, that it was going through Mandy, that Mandy was going to be the actual source this time of the cocaine.

App. at 85-86 (emphasis added).

The grand jury handed down a five count indictment. Only two of the five counts are relevant to this appeal: Count 1, charging Cartaya, Pena, and Soberon with conspiring to possess more than 500 grams of a substance containing cocaine with intent to distribute, in violation of 21 U.S.C.A. Sec. 841(a)(1) (1981) and 21 U.S.C.A. Sec. 846 (Supp.1989), and Count 3, charging Cartaya and Soberon with using a public telephone to facilitate their conspiracy to distribute cocaine in violation of 21 U.S.C.A. Sec. 843(b)(1981).

On March 19, 1990, the trial against Pena and Soberon began and the jury was sworn. Cartaya had not yet been arrested, and was not on trial and not before the district court. Agent McCann testified during the government's case-in-chief. When McCann acknowledged on cross-examination that Pena had not uttered the precise words "dope" or "cocaine" in the conversation that took place in the hotel room, Pena moved to dismiss the indictment. Pena contended that McCann's use of the words "dope" and "cocaine" was perjury, amounting to prosecutorial misconduct that warranted dismissal of the indictment.

Without the benefit of an evidentiary hearing, the district court summarily determined that Agent McCann's testimony before the grand jury was in fact perjured and the government committed prosecutorial misconduct by obtaining an indictment based in part on Agent McCann's testimony. The district court apparently believed that the only factual determination to be made at an evidentiary hearing was whether the prosecutor was aware of the discrepancy in Agent McCann's testimony, and decided there was prosecutorial misconduct, regardless of whether the prosecutor was aware of the discrepancy. ¹

The district court found that Pena was prejudiced by the prosecutorial misconduct before the grand jury, and dismissed Count 1 of the indictment with respect to him. The district court explicitly found that Soberon was not prejudiced by the misconduct, and made no finding one way or the other regarding prejudice to Cartaya. Despite the absence of a finding of prejudice to Soberon or Cartaya, the district court, in what it denominated an exercise of its supervisory power, dismissed Count 1 with respect to both of these defendants as a sanction against the government. The district court also dismissed Count 3 of the indictment, against Cartaya and Soberon based on its conclusion that the government would be unable to prove the public communications charge in the absence of the count charging the underlying offense.

This appeal by the government followed, with our jurisdiction predicated on 18 U.S.C.A. Sec. 3731 (Supp.1990). We must decide the following issues: (1) is this appeal barred by the Double Jeopardy Clause; (2) did the district court err in dismissing the charge against Soberon in light of its finding that he was not prejudiced by the purported prosecutorial misconduct; (3) did the district court err in dismissing the indictment with respect to Pena based on its finding that Agent McCann committed perjury before the grand jury; and (4) did the district court err in dismissing the indictment with respect to Cartaya, who was not before the Court. ²

II.

Pena challenges our jurisdiction to hear this appeal based on his rights under the Double Jeopardy Clause. He argues that, consistent with their constitutional rights, the defendants cannot be tried again since the indictment was dismissed for insufficient evidence, an acquittal on the merits. We address this threshold jurisdictional question first.

The Double Jeopardy Clause of the Fifth Amendment protects an individual from being put in jeopardy twice for the same offense. Jeopardy in a jury trial attaches when the jury is empaneled and sworn. Crist v. Bretz, 437 U.S. 28, 38, 98 S.Ct. 2156, 2162, 57 L.Ed.2d 24 (1978). If a defendant is thereafter acquitted on the basis of a...