U.S. v. Valera

• Decision Date: 20 May 1988
• Docket Number: No. 87-3380,87-3380
• Citation: U.S. v. Valera, 845 F.2d 923 (11th Cir. 1988)
• Parties: 25 Fed. R. Evid. Serv. 1294 UNITED STATES of America, Plaintiff-Appellee, v. Roberto VALERA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 923

845 F.2d 923

25 Fed. R. Evid. Serv. 1294

UNITED STATES of America, Plaintiff-Appellee, v. Roberto VALERA, Defendant-Appellant.

No. 87-3380.

United States Court of Appeals Eleventh Circuit.

May 20, 1988.

George E. Tragos, Clearwater, Fla., for defendant-appellant.

Robert W. Merkle, U.S. Atty., Garry J. Stegeland, Paul J. Moriarty, H. Manuel Hernandez, Asst. U.S. Attys., Orlando, Fla., for plaintiff-appellee.

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

Before HATCHETT and EDMONDSON, Circuit Judges, and MARKEY ^*, Chief Judge, Federal Circuit.

EDMONDSON, Circuit Judge:

Defendant Roberto Valera appeals his convictions and sentences for substantive and conspiracy violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. secs. 1962(c) and (d), and for violations of the Travel Act, 18 U.S.C. secs. 1952 and 2, all deriving from drug smuggling operations. Valera alleges divers errors, including a) Brady, Giglio, and Jencks errors stemming from government failure to disclose certain documents; b) an impermissible variance between the indictment's charge of a single RICO offense and a single RICO conspiracy and evidence at trial of multiple offenses and multiple conspiracies; and c) error that allowed one defense witness to claim fifth amendment privilege. ¹ Because none of these claims warrants a reversal of the convictions, we affirm.

Evidence showed that appellant Valera met Scott McKenney, then a U.S. Customs patrol officer, in February 1981. For several years McKenney had been using his knowledge of custom procedures to facilitate the transport and importation of drugs into the United States. Valera asked McKenney to arrange the importation of a shipment of cocaine from Valera's source in Colombia. McKenney knew several people that he called upon from time to time for help in importations. For Valera's venture, McKenney obtained the services of Joseph Crawford as pilot, of Danny Martin as communications expert, and of John Feller, who adapted the fuel system of the aircraft to be used. In March 1981 Crawford brought in sixty-five kilograms of cocaine from Colombia for Valera.

In meetings with McKenney, Crawford and Martin throughout the spring and summer of 1981, Valera discussed plans to bring a freighter carrying hashish to a port in Delaware and other plans to bring hashish from the Middle East into the United States, via Belize, using a large jet for the transatlantic journey and smaller aircraft for the final leg of the importation. In fall of 1981 Valera paid Martin to set up communications in Delaware regarding the freighter venture and also had Crawford fly a plane from Florida to Delaware in connection with that same venture.

Related to the Middle East plan, Valera had Martin and Crawford travel to Belize in fall of 1982. There Martin set up radar and communications at a clandestine airstrip. Martin and Crawford investigated the feasibility of landing a large aircraft on a nearby remote road, and upon their return, reported to Valera that the road was too small to accommodate a large jet.

In October 1982 Valera sent Martin to Senegal to look into the possibility of setting up communications equipment. Valera also used Martin's services on several subsequent occasions. After 1982 Valera had no further involvement with McKenney, Crawford, and Martin.

An indictment in the case came down in May 1986, charging the existence of a RICO association in fact from June 1979 to April 1983. Valera was named in four of the racketeering acts of the substantive RICO count and in five of the overt acts of the RICO conspiracy charged in count two; he was also charged with three violations of the Travel Act, for encouraging interstate and foreign travel in aid of racketeering. After a one-week trial at which he was the sole defendant, Valera was convicted of both RICO offenses and of two Travel Act offenses. The defendant was sentenced to a total of thirty years in prison and was fined a total of $50,000.

I. Brady, Giglio, and Jencks Claims

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), requires that the government disclose to the defense evidence exculpatory to the defendant. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), requires government disclosure to the defense of promises of leniency or immunity made to government witnesses; that one prosecuting attorney may be unaware of certain promises made by another does not affect the government's responsibility. The Jencks Act, 18 U.S.C. sec. 3500, requires that, after a government witness has testified on direct examination, the government disclose to the defense verbatim statements made or adopted by that witness which relate to the subject matter to which the witness has testified.

Defendant Valera alleges Brady, Giglio and Jencks errors as to a variety of statements and evidence. Primarily, he claims that the government acted improperly in not disclosing material that would have impeached witness McKenney: a) a memorandum prepared by Assistant U.S. Attorney Sullivan after McKenney had falsely stated to the U.S. Attorney that one Ronald Hansen, just arrested for drug smuggling, had actually been working as an undercover agent for McKenney (the Sullivan memorandum); b) the documents in McKenney's personnel file relating to the internal affairs investigation of McKenney, including a statement by McKenney to Agent Allen, who conducted the investigation, and notes that McKenney had made about the Hansen affair; c) McKenney's statements to Customs Agent Rivera who interviewed McKenney after McKenney's arrest (Rivera documents).

Under the Jencks Act only prior verbatim statements made or adopted by a witness and relating to his testimony need be disclosed to the defense. See 18 U.S.C. sec. 3500(e)(1) and (2); United States v. Ricks, 817 F.2d 692, 698 (11th Cir.1987); United States v. Gaston, 608 F.2d 607, 611 (5th Cir.1979). The Sullivan memorandum is just a report written by U.S. Attorney Sullivan and never adopted by McKenney; the Rivera documents are not verbatim statements, but summaries written by Agent Rivera of what McKenney had told him. The district court did review both documents and correctly determined that the Sullivan memorandum and the Rivera documents did not fall within the Jencks definition of "statement" because neither of them was a verbatim transcription of what McKenney had stated in his conversations with Sullivan and Rivera and McKenney had adopted neither of the statements.

The district court did, however, order disclosure of the notes McKenney had made on the Hansen affair and of McKenney's affidavit given to Agent Allen, because both of these documents fell within the ambit of the Jencks Act (both meeting the Act's definition as to verbatim statements). Because the government first uncovered these documents in the internal affairs file on the third day of the trial, after witness McKenney had concluded his testimony, the court permitted McKenney to be recalled for cross-examination about these verbatim documents. The district court thereby obviated any prejudice to the defense resulting from tardy disclosure of the verbatim documents. Consequently, there was no Jencks Act violation.

The mandate of Brady and Giglio are broader; under these principles, defendant Valera also claimed access to the Sullivan memorandum, McKenney's internal affairs investigation file, and the Rivera summaries. ² The district court personally reviewed the Sullivan memorandum and the Rivera summaries and determined that their contents did not mandate their release to the defense under Brady. In light of the government's assertions, after the government's review of the internal affairs investigation files on McKenney, that there was no Brady material in these files, the district court also determined that disclosure was unnecessary. Appellant Valera now claims that the district court erred in its ruling and by not examining McKenney's internal investigation files in camera to determine for itself whether or not the files contained disclosable material. Valera claims that in camera review was clearly indicated because the government disclosed McKenney's statement and notes in the internal affairs file only after the government had initially claimed that the file contained no disclosable material.

Occasionally, it is appropriate for judges to examine personally government files to satisfy Brady, Giglio, or the Jencks Act. See United States v. Griggs, 713 F.2d 672 (11th Cir.1983) (rejecting idea that, unless the prosecution has doubts as to the non-existence of Brady material, a district judge has no power to conduct an in camera inspection). Generally, however, trial judges are not required to examine personally government files. Gaston, 608 F.2d at 612. How the trial court proceeds to enforce disclosure requirements is largely a matter of discretion to be exercised in light of the facts of each case.

In this case, the district court based its ruling and its refusal to review the internal affairs file not only on a simple assurance from the government as to the absence of Brady material in the file. In addition, the district court, outside the presence of the jury, heard testimony of defense witnesses Sullivan, Allen (who had conducted the internal affairs investigation of McKenney), and Rivera. After this hearing and based on the testimony of Allen who examined the internal affairs file while on the witness stand and determined that it contained no further disclosable material, the district court concluded that no in camera review by the court was necessary.

Under these circumstances, we cannot say that the district court acted incorrectly. Even had the district court improperly denied defense access to one or more of these documents, we suspect that the denial would have constituted only harmless error in this case for either of...