U.S. v. Sorondo, 87-5520

• Decision Date: 23 May 1988
• Docket Number: No. 87-5520,87-5520
• Citation: 845 F.2d 945
• Parties: 25 Fed. R. Evid. Serv. 1121 UNITED STATES of America, Plaintiff-Appellee, v. Albert SORONDO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 945

845 F.2d 945

25 Fed. R. Evid. Serv. 1121

UNITED STATES of America, Plaintiff-Appellee, v. Albert SORONDO, Defendant-Appellant.

No. 87-5520.

United States Court of Appeals Eleventh Circuit.

May 23, 1988.

Theodore J. Sakowitz, Federal Public Defender, Lisa A. Rosenthal, Asst. Federal Public Defender, Miami, Fla., for defendant-appellant.

Leon B. Kellner, U.S. Atty., Robert E. O'Neill, Asst. U.S. Atty., Miami, Fla., for plaintiff-appellee.

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

Before TJOFLAT and HILL, Circuit Judges, and WARD ^*, District Judge.

HILL, Circuit Judge:

In this appeal, the appellant challenges his conviction on charges of distributing and conspiring to distribute cocaine. He attacks the constitutionality of the law under which he was sentenced and the admissibility of certain testimony by a government witness. We reverse.

I. FACTS

The charges against the appellant, Albert Sorondo, stem from his sale of one kilogram of cocaine to an agent of the Drug Enforcement Administration ("DEA"), David Lorino, and a paid DEA informant, Raphael O'Relly. Appellant does not dispute the facts surrounding the sale. The informant, O'Relly, met with appellant on November 20, 1986 and informed him that he had contacted a person who wanted to buy cocaine. O'Relly told appellant that he needed to obtain twelve kilograms of cocaine. Appellant responded that he would check with some friends about getting the cocaine, and he quoted a price of $16,000 per kilogram.

The following day, O'Relly set up a meeting between appellant, agent Lorino, and himself at a Denny's Restaurant. At the meeting, appellant stated that he had been in contact with a friend and that he would be able to supply the cocaine. He also produced a sample of cocaine which agent Lorino field tested in the rest room. Lorino told appellant that he was satisfied with the quality, and the three men left the restaurant. O'Relly and Lorino drove around and waited for appellant, whom they believed had gone to pick up the twelve kilograms of cocaine, to contact them by beeper. Appellant contacted them and told them to meet him at a Holiday Inn. When they arrived at the hotel parking lot, appellant informed O'Relly and Lorino that he had obtained only one kilogram and that the remainder would be supplied in three kilogram increments. He produced the one kilogram and was arrested. After being appropriately informed of his rights, appellant signed a written confession describing the meetings and the transaction.

As noted above, appellant does not contest his involvement in the transaction. Indeed, appellant testified at his trial and described the sale. Rather than dispute his involvement, appellant asserted a defense of entrapment. He argued that O'Relly consistently pressured him until he finally broke down and supplied the cocaine.

Through appellant's testimony and that of his wife, Miriam Sorondo, appellant showed that his relationship with O'Relly began the month prior to the ultimate cocaine sale. O'Relly met appellant at a bowling alley and informed him that he had 25,000 pounds of marijuana in Texas which he wanted appellant to help him sell. Appellant informed O'Relly that he was a musician and that he was not interested in selling drugs, but he did eventually go to Texas. On his first stay in Texas, appellant was taken blindfolded to a location where he saw thousands of pounds of marijuana. At O'Relly's request, appellant made various efforts to sell marijuana to individuals he knew in Miami. Appellant persuaded four people to come to Texas, but was unable to sell any of the drugs. Appellant returned home to Miami, but then returned to Texas at O'Relly's invitation for a second effort to sell marijuana. Appellant was again unsuccessful.

Appellant and his wife testified that O'Relly and his associates called appellant's home constantly to ask him to participate in drug transactions. According to appellant's testimony, he consistently refused to participate. Appellant testified that O'Relly ultimately agreed to leave him alone if he would perform just one cocaine transaction. Appellant eventually agreed, and the transaction led to his arrest.

At trial, the defense argued that O'Relly was paid a considerable amount of money for his services and that he had a financial motive for pressuring the appellant since he was paid on a case-by-case basis. The jury rejected appellant's entrapment defense, however, and found him guilty of conspiracy to distribute cocaine and distribution of cocaine. He was sentenced to the mandatory minimum sentence of five years under 21 U.S.C. Sec. 841, and he is currently incarcerated.

II. DISCUSSION

A. Mandatory Minimum Sentence

Appellant maintains a broad-based attack on the constitutionality of the mandatory minimum sentence provisions contained in 21 U.S.C. Sec. 841. As appellant concedes, however, his due process, equal protection, and Eighth Amendment challenges have recently been considered and rejected by this court. See United States v. Holmes, 838 F.2d 1175 (11th Cir.1988). Thus, we need not review the bulk of appellant's constitutional attacks.

Appellant does, however, raise an additional constitutional argument which was not addressed in Holmes. He claims that he falls into an arbitrary gap established by the mandatory minimum sentence provision. The original provision became effective in October of 1986. Congress subsequently enacted 18 U.S.C. Sec. 3553(e), which provides for mitigation of the mandatory minimum sentence on motion by the government if the defendant was aiding in the prosecution or investigation of other suspects. The mitigating provision took effect in November of 1987. Appellant claims that individuals charged with crimes occurring during the gap between October of 1986 and November of 1987 are arbitrarily denied the benefit of the mitigating provision. This issue has largely been rendered moot by the Sentencing Act of 1987, Pub.L.No. 100-182, 101 Stat. 1266 (1987), which requires retroactive application of the mitigating provision. Under this provision, Congress has removed the gap. With respect to this appellant's trial, however, the issue is not moot. He was convicted and sentenced before the gap was removed. We are therefore obliged to address the merits of his constitutional attack.

Appellant claims that it is arbitrary and unconstitutional to enact a statute providing for severe minimum sentences while delaying the availability of a mitigating mechanism. The argument is without merit: "where a statute does not discriminate on racial grounds or against a suspect class, Congress' judgment will be sustained in the absence of persuasive evidence that Congress had no reasonable basis for drawing the lines that it did." Holmes, 838 F.2d at 1177. According to appellant's argument, Congress could never enact a provision which mitigated the effect of a prior sentencing provision unless the new law was given retroactive effect. That is not the case. The fact that Congress enacted this particular mitigating provision only one year after the original provision, rather than several years later, does not indicate that the series of provisions is arbitrary. Congress is certainly empowered to pass laws which lessen the severity of previous sentencing provisions, and it need not do so retroactively. Thus, appellant's claim that the existence of a "gap" is unconstitutional is without merit.

B. Inadmissible Testimony

Appellant objects to the admission of a portion of testimony given by special agent Peter Sarron, a rebuttal witness for the government. The defense attempted to prove that appellant had been entrapped by O'Relly. Appellant and his wife testified that O'Relly constantly put pressure on him to sell drugs, and evidence was introduced to show that O'Relly was motivated to entrap appellant by large, result-oriented fees. To rebut this defense, the government called agent Sarron to testify as to O'Relly's long-standing cooperation with the DEA and his considerable success. In an effort to justify the large fees paid to O'Relly, the government elicited testimony regarding the number of cases O'Relly had participated in and the amount of money and property which had been forfeited to the government due to his assistance. At one point during Sarron's direct examination, the following exchange took place:

Q. And during that time, how many cases for you has he worked?

A. Oh, he has worked probably fifty or sixty. We made about forty cases that resulted in prosecution and seizures.

Q. Of the forty cases, how many resulted in convictions?

Mr. Dachs: Objection as to relevancy.

The Court: Objection overruled.

The Witness: I can't think of one defendant that we have lost. We have convicted well over a hundred people.

Appellant argues that the testimony regarding the number of convictions obtained with O'Relly's assistance was unfairly prejudicial and inadmissible. We agree.

As an initial matter, the record shows that...