U.S. v. Valdes

• Decision Date: 20 January 1977
• Docket Number: No. 76-1001,76-1001
• Citation: 545 F.2d 957
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Albert VALDES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 957

545 F.2d 957

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

No. 76-1001.

United States Court of Appeals, Fifth Circuit.

Jan. 20, 1977.

Edward L. Kelly, Jr., Bernard H. Dempsey, Jr., Orlando, Fla., for defendant-appellant.

John L. Briggs, U. S. Atty., Jacksonville, Fla., Robert A. Leventhal, Wm. Francis Duane, Asst. U. S. Attys., Orlando, Fla., for plaintiff-appellee.

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

Before AINSWORTH and RONEY, Circuit Judges, and ALLGOOD, District Judge.

RONEY, Circuit Judge:

Albert Valdes was convicted of conspiracy to import cocaine in violation of 21 U.S.C.A. §§ 812, 952(a), and 960(a)(1). Conceding that the evidence presented at trial was sufficient for his conviction, his contentions on this appeal relate to alleged Government misconduct with respect to four witnesses who refused to testify at the trial. Valdes argues that these witnesses asserted their Fifth Amendment privilege because of certain Government activity alleged to be improper, so that the Government deprived him of their favorable testimony. He also raises certain discovery and Jencks Act violations, and one point as to the admissibility of evidence. We affirm his conviction.

A short recitation of the facts will show the part the four witnesses played. On October 31, 1974 Craig Jacobson flew from his home in Minnesota to Atlanta with $10,000 in his suitcase. He was joined by Daniel Brady and the two of them flew on to Melbourne, Florida. There they were met by James Holdsworth and John Roberts. All four men proceeded to an apartment in Vero Beach, Florida, where they were met by Sheldon Wynne, and his wife-to-be, Anita Long. In accordance with plans formulated that evening, defendant Valdes and Wynne flew to Colombia, South America, on November 2, 1974 to purchase cocaine with the $10,000.

As had been prearranged, the cocaine was mailed to the United States in three packages. Two packages were sent to Minnesota addresses, but were intercepted by a customs inspector at Kennedy Airport in New York. After determining that these packages contained cocaine, he forwarded them to a postal inspector in Minnesota, along with a "chain of custody" receipt. A controlled delivery of the packages was arranged and the Minnesota participants were arrested. These two packages were addressed in Wynne's handwriting.

The third package was sent to Laurel Maurer, a college student in Deland, Florida. This package was intercepted by customs agents in Miami. When Ms. Maurer picked up the package she was met by Drug Enforcement Administration agents, with whom she agreed to cooperate. At their direction, she made a prearranged call to defendant Valdes and informed him that the package had arrived. Subsequently, Wynne and John Herron, a friend and co-worker of defendant Valdes, came to get the parcel. They were arrested. The defendant was arrested the next day. The handwriting on this package was that of Valdes.

Of these people, Daniel Brady, James Holdsworth and John Roberts, in on the original meeting at Vero Beach, and John Herron, who with Valdes, sought delivery of the package in Florida, were called by the Government but refused to testify on Fifth Amendment grounds.

Defendant asserts that these witnesses would have testified favorably to him, but they refused because of threats of prosecution by the Government. Defendant relies particularly upon John Herron. After a lengthy interview prior to putting him on the stand, the district attorney advised Herron that a previous grant of immunity did not extend to perjury. Herron had previously given a sworn statement. Herron then declined to testify when called by the Government because his testimony might tend to incriminate him.

The defendant loses this argument on appeal for three reasons. First, the defendant relies almost entirely on an affidavit which is not a part of the formal record on appeal. According to the record, defense counsel declined an opportunity to establish the factual basis of these allegations. During the trial the Assistant United States Attorney stated, "If Mr. Dempsey thinks I put these witnesses up to taking the Fifth and refusing to cooperate, he can call me as a witness . . . and get this out in the record . . . ." Defense counsel declined the invitation and remarked, "I don't suggest any impropriety." The record reflects no facts upon which to posit a reversal of the conviction.

Second, in spite of this, we might be inclined to return the case to the district court for development of the facts if the bare assertions on appeal were sufficient to indicate that the defendant could establish a factual base for relief. The conduct of the Government asserted here, however, is not sufficient to bring the case within the ambit of the cases upon which the defendant relies.

In United States v. Thomas, 488 F.2d 334 (6th Cir. 1973), a key defense witness was advised by defense counsel that he might be subjected to prosecution for misprision of a felony and inquired if he wished to confer with his attorney. The witness agreed to consult with his own counsel and a recess was called so that he might do so. During the recess "he was approached by a secret service agent involved in the case who told him that he would be prosecuted for misprision of a felony if he testified in the case." Id. at 335. Subsequently, the witness refused to testify even though the Government informally advised the court that he would not be prosecuted. The Sixth Circuit remanded the case for a new trial because "the Government's action here substantially interfered with any free and unhampered determination the witness might have made as to whether to testify and if so as to the content of such testimony." Id. at 336. The present situation is unlike Thomas. Here the Government's alleged action, rather than improperly interfering with the intelligent determination of the witness as to his Fifth Amendment rights, simply provided him with the additional fact that his immunity did not extend to perjury. See United States v. Stevenson, 445 F.2d 25, 29 (7th Cir.), cert. denied, 404 U.S. 857, 92 S.Ct. 108, 30 L.Ed.2d 99 (1971); United States v. Closson, 383 F.Supp. 1119 (E.D.Pa.1974), aff'd, 511 F.2d 1392 (3rd Cir. 1975).

In United States v. Morrison, 535 F.2d 223 (3rd Cir. 1976), a witness was informed before trial that charges against her would be dropped because she had been a minor at the relevant time. Before trial the prosecutor engaged in several discussions with the witness which the Third Circuit characterized as "repeated warnings which culminated in a highly intimidating personal interview." Id. at 227. In Morrison, the court came to the explicit conclusion that the Government had virtually driven a key defense witness from the stand and that such "bizarre conduct toward a witness for the defense is not be condoned." Id. at 228. That decision relies on facts quite different than those present in the case at bar. Herron was allegedly only spoken to once by the United States Attorney and his own counsel was present throughout those proceedings. It was only after consultation with his own counsel that Herron chose to invoke his Fifth Amendment privileges. The alleged facts as to Government activity fail to rise to the level of improper conduct meriting reversal, even if true.

Third, we do not have before us the affidavit originally given by Herron to the Government. We do not know if Herron's testimony would have been helpful to the defendant. The Government, and not the defendant, called him. We can only assume that had Herron testified in accordance with his prior statement, his testimony would have been favorable to the Government. The defendant has failed to demonstrate otherwise. If he was going to contradict his prior affidavit under oath, he would have been guilty of perjury at one time or the other, and had every right to refuse to testify.

The defendant contends that the district court failed to satisfy its obligation to determine whether Herron had a valid basis for invoking the Fifth Amendment as required by United States v. Gomez-Rojas, 507 F.2d 1213 (5th cir.), cert. denied, 423 U.S. 826, 96 S.Ct. 41, 46 L.Ed.2d 42 (1975), and United States v. Melchor Moreno, 536 F.2d 1042 (5th Cir. 1976). We fail to perceive how defendant can complain about any defect in the district court's procedure in this regard. The rule is for the...