U.S. v. Tenorio-Angel
| Decision Date | 08 April 1985 |
| Docket Number | D,No. 83-5752,TENORIO-ANGE,83-5752 |
| Citation | 756 F.2d 1505 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Cesarefendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Michael D. Abzug, Los Angeles, Cal., Bruce M. Wilkinson, Stuart, Fla., for defendant-appellant.
Stanley Marcus, U.S. Atty., Linda Collins-Hertz, Lynne W. Lamprecht, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before HILL, KRAVITCH and SMITH *, Circuit Judges.
Appellant Cesar Angel-Tenorio was convicted of conspiracy to possess with intent to distribute cocaine, 1 possession with intent to distribute cocaine, 2 and distribution of cocaine. 3 He appeals claiming that: the indictment should have been dismissed for violation of the Speedy Trial Act, 18 U.S.C. Sec. 3161; he was denied his sixth amendment right to call and cross-examine witnesses by the trial court's refusal to require the government to produce its confidential informant; the trial court erred in not declaring a mistrial after it struck from evidence a previously admitted tape recording; and the trial court incorrectly instructed the jury on the law of conspiracy. Because we find no error in any of the challenged actions, we affirm.
This case involves a cocaine conspiracy by appellant, Fernando Lnu, Loic Boichoit, and Marc de Tremmerie, and possession and distribution of cocaine by appellant and Fernando Lnu. On March 20, 1983, confidential informant Rudy Bouchouston introduced Boichoit to several government agents, including special agent Luis Rivera. Boichoit discussed the possibility of a large scale cocaine transaction with the agents. On April 13, 1983, Boichoit and Rivera met again. At this meeting, Boichoit told Rivera that he was willing to sell him two kilograms of cocaine initially, and, if the deal was successful, to sell him 100 kilograms per week. Agent Rivera agreed to purchase the two kilograms. Boichoit said that one of his people would contact Rudy (the informant) and that person would deal on Boichoit's behalf. Rudy attended this meeting, but did not participate in the conversation.
On May 25, 1983, Rudy called Rivera and told him that Boichoit's people had called him and that they were ready to meet and transact the deal. Agents Rivera and Aguilar met Rudy, appellant, and another man known as Fernando at a shopping center according to plan. Rivera and Aguilar testified that appellant stated that he had ten kilograms of cocaine for sale at $32,000 per kilogram. Rivera said that he did not have the money, but that he had made an arrangement with Boichoit for the appellant to "front" the ten kilograms to him. At first appellant refused, but when the agents began walking away appellant immediately followed them and said "okay." Appellant then asked for the agents' car keys so that Fernando could take the car and pick up the cocaine. The agents remembered that they had radios in their car. They told appellant that they had to deal some cocaine and left the scene for approximately fifteen minutes. When they returned, Fernando left with the agents' car and the agents got into appellant's car. Appellant drove to another shopping mall. After approximately forty-five minutes, appellant left to find Fernando. Appellant returned with the keys to the agents' car which he gave to them, advising them that the merchandise was in the trunk of the car. After driving away, the agents stopped, opened the trunk, and found a bag containing ten kilograms of cocaine.
The agents and appellant had agreed to meet the next day so that the agents could pay appellant the $320,000 for the cocaine. They met at nine o'clock a.m. The agents said that they did not have the money then, but that they would be back around noon with the money they owed plus enough for ten more kilograms of cocaine. When the agents returned to the mall at noon, no one was there to meet them. Agent Rivera called Boichoit who informed him that "the man" had gotten scared and that he would talk to his "main man," his boss, and get back to Rivera.
Agents Rivera and Aguilar next met appellant on June 2, 1983, at a shopping mall. Rudy also attended this meeting. Rivera told appellant that he had a million dollars in the trunk of his car and that he needed twenty more kilograms of cocaine. Appellant stated he would not give Rivera any more cocaine until he received $320,000 for the other ten kilograms. At that time, Rivera gave the arrest signal and the agents, the informant, and appellant were arrested.
Appellant's defense was that he did not know that the business deal he was entering into with the agents involved cocaine. Rather, he thought that he was assisting in the export of Chevrolet automobiles to Colombia. Appellant testified as to the details of this arrangement as follows:
The deal was proposed by Boichoit. Boichoit subsequently introduced appellant to Rudy, the informant, who worked at a car dealership. Appellant testified that Rudy told him that he would make a lot of money in the car business and gave him his card. The card indicated that Rudy worked at Tropical Chevrolet. At a later meeting, Rudy told appellant to meet him on May 25th to receive money to turn in to the car dealership. On May 25, 1983, appellant met with Rudy at nine o'clock a.m. at Tropical Chevrolet. Appellant was told to go to a certain shopping center at eleven o'clock a.m. At the shopping center, Rudy introduced appellant to Fernando, a mechanic at Tropical Chevrolet, and the agents. Appellant expected to meet the people who were going to give him money to deliver to Tropical Chevrolet. After talking to the people for about five minutes, appellant gave some car keys to Fernando. They agreed to meet an hour later at another shopping center where appellant thought he would get the money for the automobile. Appellant drove the agents to this second shopping center. After the meeting at the second shopping center, appellant dropped Fernando off at Tropical Chevrolet. Fernando told him that he should meet with the agents the following morning to receive the money. When the agents and appellant met the next day, Rivera asked appellant for cocaine. After appellant told them that he did not know anything about drugs, the agents left. Appellant subsequently called Rudy at Tropical Chevrolet and told him that he did not want to be "implicated in anything" or to "deal with anything." Appellant testified that he had decided not to do business with Rivera and Aguilar, but that he met with them on June 2, 1983 because he had received ten or twelve calls threatening his life and the lives of his family members. The caller identified himself as Rudy.
The Speedy Trial Act, 18 U.S.C. Sec. 3161 et seq., mandates that a trial commence within seventy days after the date defendant appeared before a judicial officer or the date of the indictment, whichever occurs later. Section 3161(h) excludes from this seventy-day period certain specific delays including not over thirty days for ruling on any pretrial motion made by the defendant. In addition, section 3161(h)(8)(A) excludes any period of delay resulting from a continuance granted at the request of either party or the trial judge, "if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial." The court must set forth either orally or in writing its reasons for making this finding. 18 U.S.C. Sec. 3161(h)(8)(A). No such continuance shall be granted because of general congestion of the court's calendar, or lack of diligent preparation or failure to obtain witnesses on the part of the attorney for the government. 18 U.S.C. Sec. 3161(h)(8)(C). Under Sec. 3162(a)(2), the sanction for failing to bring the defendant to trial within the time limits of the Act is dismissal of the indictment upon motion of the defendant. The defendant, however, must make this motion prior to trial or entry of a plea of guilty or nolo contendere, or the right to dismissal is waived. 18 U.S.C. Sec. 3162(a)(2).
In the present case, it is not disputed that the time for computing the seventy-day period began on June 11, 1983, the day following the indictment. The trial began on September 19, 1983. The following periods were excluded:
August 1-9: Counsel for defendant was unavailable due to another trial, as indicated by letter from counsel.
August 22-26: Motion of defendant for bond reduction.
September 9-14: Motion of defendant for continuance.
September 14-19: Motion of defendant for continuance.
The above excluded periods reduced the time below the 70 day level. Appellant, however, claims the judge erred in not charging the last five days (September 14-19) to the government. 4 Although defendant argued before the trial court that this continuance should be charged to the government, defendant did not move for dismissal under the Speedy Trial Act. Section 3162(a)(2) explicitly states that "[f]ailure of the defendant to move for dismissal prior to trial ... shall constitute a waiver of the right to dismissal under this section." Thus, defendant waived his right to the sanction of dismissal under the Speedy Trial Act. See United States v. Daly, 716 F.2d 1499, 1506 (9th Cir.1983), cert. dismissed, --- U.S. ----, 104 S.Ct. 1456, 79 L.Ed.2d 773 (1984); United States v. Tercero, 640 F.2d 190, 195 (9th Cir.1980), cert. denied, 449 U.S. 1084, 101 S.Ct. 871, 66 L.Ed.2d 809 (1981); United States v. Little, 567 F.2d 346, 349 (8th Cir.1977), cert. denied, 435 U.S. 969, 98 S.Ct. 1608, 56 L.Ed.2d 60 (1978). 5
Although appellant knew that the confidential informant's name was Rudy Bouchouston, appellant was unable to locate him. Following jury selection, appellant moved to have the...
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