U.S. v. Trujillo
| Decision Date | 14 July 1998 |
| Docket Number | No. 96-5336,96-5336 |
| Citation | 146 F.3d 838 |
| Parties | 11 Fla. L. Weekly Fed. C 1599 UNITED STATES of America, Plaintiff-Appellee, v. Raul TRUJILLO, Francisco Nelson Fuentes, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Brian H. Bieber, Joel Hirschorn, P.A., Miami, FL, for Trujillo.
Sally Gross, Farina & Gross-Farina, P.A., Miami, FL, for Fuentes.
William A. Keefer, U.S. Atty., Dawn Bowen, Evelio J. Yera, Stephen Schlessinger, Asst. U.S. Attys., Miami, FL, for Plaintiff-Appellee.
Appeals from the United States District Court for the Southern District of Florida.
Before HATCHETT, Chief Judge, and RONEY and LAY *, Senior Circuit Judges.
In this cocaine trafficking case, appellants Raul Trujillo and Nelson Fuentes challenge the district court's handling of voir dire, various evidentiary rulings, jury instructions and a modified Allen charge at trial. Fuentes also challenges the district court's imposing a two-level enhancement at sentencing for possession of a firearm. We affirm.
In 1994, co-defendant Luis Ruiz approached fellow employee Carlos Chirino (Carlos), seeking his help in an illegal drug transaction. Carlos, aware that his brother Jose Chirino (Jose) worked as a government informant, told Ruiz that his brother was a boat captain and could assist him. In January 1995, Carlos introduced Ruiz and Jose. Approximately one month later, Ruiz introduced Carlos and Jose to co-defendant Narcisco Rodriguez. Jose informed Special Agent Nestor Duarte of the Federal Bureau of Investigation (FBI) of this meeting, and they decided that Jose would pose as a captain of a boat with access to a crew who would act as transporters of cocaine.
In subsequent meetings, which included appellant Raul Trujillo, Rodriguez, and co-defendants Juan Castellanos and Rafael Herryman-Perez, Jose learned that the defendants had arranged for a cocaine delivery to take place near the Turks and Caicos Islands. The defendants instructed Jose to pick up the cocaine, bring it to Miami and deliver it to them. On May 16, 1995, Jose met with and recorded the co-defendants, and then met with Agent Duarte. Jose gave Agent Duarte a paper bag containing $10,000 that Jose said was from Trujillo. Jose, the FBI and the Coast Guard traveled to the Turks and Caicos Islands, and eventually recovered 31 of the 32 air-dropped bales of cocaine on May 23, 1995. The 31 bales contained 773 kilograms of cocaine. On May 25, the agents shipped the cocaine to Miami, and on May 30, Jose met with Rodriguez, Ruiz, Trujillo and Herryman-Perez to discuss the missing bale of cocaine and the price of the cocaine. On June 2, Jose again met with Rodriguez, Ruiz, Trujillo and Herryman-Perez. Jose taped both meetings, which revealed Trujillo and others discussing the division of the cocaine. Jose agreed to deliver portions of the 773 kilograms of cocaine on June 3. Before this meeting, Castellanos gave appellant Francisco Nelson Fuentes the key to a van that Jose had provided.
On June 3, 1995, the FBI and Drug Enforcement Agency (DEA) placed 300 kilograms of cocaine in two coolers and placed them in the rear of a van. They sprayed the cocaine with Clue Spray. 1 Jose, wearing white pants and a green shirt, drove the van to a supermarket parking lot. The parties had agreed that the person picking up the van would also be dressed in white pants and a green shirt. Fuentes arrived, wearing white pants and a green shirt, and drove the van to a warehouse. The law enforcement agents waited outside of the warehouse for approximately 3 1/2 hours, watching the only exit. The agents then requested that the occupants of the warehouse exit, and Fuentes and co-defendant Juan Lasarte exited the building. Soon after being taken into custody, the law enforcement officials took each of them into a dark area and exposed them to ultraviolet light. Their hands and clothing reacted from exposure to the Clue Spray.
Upon entering the warehouse, the agents found 75 of the 300 kilograms of cocaine. Lasarte and Fuentes had transferred the cocaine to three boxes with 25 kilograms per box. Additional searches of the warehouse revealed: (1) a hidden door to a marijuana-growing lab; (2) the missing 225 kilograms of cocaine under a work bench; and (3) in a room adjacent to the discovery of the boxes of cocaine, a leather pouch that contained a loaded pistol and a concealed weapon permit belonging to Fuentes. 2 Law enforcement agents thereafter arrested Trujillo.
On June 14, 1995, a grand jury in the Southern District of Florida indicted Trujillo Fuentes and five co-defendants for conspiracy to import cocaine into the United States, in violation of 21 U.S.C. §§ 952(a) and 963; conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846; and possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Rodriguez and Castellanos entered into plea agreements. Herryman-Perez remained a fugitive. Trujillo, Fuentes, Ruiz and Lasarte went to trial.
The jury acquitted Lasarte on all counts, was unable to reach a verdict on Ruiz, and convicted Trujillo of all three counts. The court sentenced Trujillo to 235 months of imprisonment on each count to run concurrently, 5 years of supervised release and a $150 special assessment. The jury acquitted Fuentes of Counts I and II, and convicted him of Count III. Fuentes's presentence investigation report (PSI) set his base offense level at 38. Prior to the sentencing hearing, the government filed a written objection to the PSI, urging the district court to impose a two-level upward adjustment, pursuant to U.S.S.G. § 2D1.1(b)(1) (1997), because Fuentes had possessed a firearm during the commission of the drug trafficking crime. At the sentencing hearing, the district court imposed the two-level adjustment, raising Fuentes's total offense level to 40. This two-level adjustment made Fuentes ineligible to qualify for the Safety Valve Provision under section 5C1.2 or the downward departure in section 2D1.1. The district court sentenced Fuentes to 292 months of imprisonment, 5 years of supervised release and a $50 special assessment.
Trujillo and Fuentes contend that the district court abused its discretion in refusing to dismiss the panel of prospective jurors during voir dire after a prospective juror made comments concerning their custodial status. They additionally contend that the district court abused its discretion in failing to grant their motion for mistrial after the government's rebuttal closing argument, erred in issuing its jury instruction for conspiracy and erred in issuing a modified Allen charge.
Trujillo contends that the district court abused its discretion in admitting evidence. He also contends that the government presented insufficient evidence to sustain his convictions and that the district court abused its discretion in denying his motions for mistrial. Fuentes contends that the district court abused its discretion in admitting the testimony of Agent Shamas and erred in enhancing his sentence pursuant to Sentencing Guidelines section 2D1.1(b)(1).
At voir dire, prospective juror Heron (juror number 54), a Metro-Dade Corrections Officer, commented that,
from time to time we have to house federal prisoners and it places someone like myself in a very inviduous position. I don't think that that would affect my impartiality in any way, but I just wanted to point this out to the Court .... from time to time ... I have to enter cells where defendants are housed, inmates are housed, and I am not sure who is housed where I enter, and I don't know if any of these defendants have ever been housed in the county system. Two faces do look slightly familiar to me.
Trujillo and Fuentes objected, contending that these comments showed "actual bias" and suggested that Heron believed that they were in custody. They claimed that these comments tainted the entire panel although Heron did not serve as a member of the jury panel, and they argue that the district court erred in not granting a mistrial. We review the district court's determination whether to strike an entire jury panel for manifest abuse of discretion. See United States v. Simmons, 961 F.2d 183, 184 (11th Cir.1992) (citing United States v. Muller, 698 F.2d 442, 444 (11th Cir.1983)), cert. denied, 507 U.S. 989, 113 S.Ct. 1591, 123 L.Ed.2d 156 (1993). The party challenging the refusal to strike a panel "must demonstrate that the juror in question exhibited actual bias: That is, either an express admission of bias, or proof of specific facts showing such a close connection to the circumstances of the case that bias must be presumed." United States v. Khoury, 901 F.2d 948, 955 (11th Cir.1990) (internal quotations and citations omitted).
After Heron made these comments, Trujillo's and Fuentes's lawyers asked the court to excuse Heron for cause. The court then questioned Heron, and allowed the lawyers to question Heron. This questioning did not reveal any bias on Heron's part; in fact, Heron repeatedly stated that he could conduct himself in an impartial manner. 3 The district court refused to strike Heron, but he was not selected for the jury panel. Based on this questioning, along with the separate questioning of other prospective jurors, the district court refused to strike the entire panel or grant a mistrial. Additionally, the district court issued the following curative instruction:
There was a comment made during jury selection by one of the potential jurors who was involved in his--his work was in corrections, that he might have seen one of the defendants. There is absolutely no basis for thinking that these defendants have been in custody, are in custody or anything like that. So, please put anything like that out of your mind.
We hold that the district court did not...
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