U.S. v. Varella

• Citation: 692 F.2d 1352
• Decision Date: 06 December 1982
• Docket Number: No. 81-5295,81-5295
• Parties: 12 Fed. R. Evid. Serv. 259 UNITED STATES of America, Plaintiff-Appellee, v. Victor VARELLA, Charles Gavin and Raul Felix Chinea, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1352

692 F.2d 1352

12 Fed. R. Evid. Serv. 259

UNITED STATES of America, Plaintiff-Appellee, v. Victor VARELLA, Charles Gavin and Raul Felix Chinea Defendants-Appellants.

No. 81-5295.

United States Court of Appeals Eleventh Circuit.

Dec. 6, 1982.

As Amended on Denial of Rehearing

March 31, 1983.

Lawrence N. Rosen, Miami, Fla., for Varella.

Donald A. Lykkebak, Orlando, Fla., for Gavin.

Alan E. Dubow, Coconut Grove, Fla., John W. Persse, Persse & Pollack, Coral Gables, Fla. (court-appointed), for Chinea.

Sara Criscitelli, Atty., Appellate Sec., U.S. Dept. of Justice, Kenneth A. Caruso, U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellee.

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

Before RONEY, TJOFLAT and FAY, Circuit Judges.

FAY, Circuit Judge:

We are called upon to decide the appeals of three criminal defendants convicted after a jury trial in the Southern District of Florida of conspiracy to distribute and import marijuana, possession with intent to distribute marijuana, and importation of marijuana, in violation of 21 U.S.C. Sec. 841(a)(1), 21 U.S.C. Sec. 846, 21 U.S.C. Sec. 952(a), and 21 U.S.C. Sec. 963 (West 1976). The appellants raise several overlapping and individual points concerning denial of motions for severance, limiting cross-examination of government informants, speedy trial violations, and admission of hearsay statements under Fed.R.Evid. 801(d)(2)(E). After careful consideration, we reject all of the appellants' contentions and affirm the district court.

Background

The uncontroverted facts of this case establish that appellants Chinea, Varella, and others agreed to import a large quantity of marijuana from Haiti. On April 3, 1980, co-conspirator Morris Kessler met with Charles Martinez, a trained pilot, to discuss the group's need for a pilot to fly a DC-6 loaded with marijuana from Haiti to the United States. Kessler did not know Martinez was an undercover agent for the Drug Enforcement Administration (DEA). Agent Martinez accepted the job and later met with appellants Varella and Chinea, and other co-conspirators to discuss plans for the importation scheme. On April 20, 1980, agent Martinez, accompanied by two government informants acting as his flight crew, flew the DC-6 with its marijuana cargo to the off-load site in Leesburg, Florida. The marijuana was off-loaded into trucks. Appellant Gavin, later identified as one of the individuals who stood guard during the off-loading, drove appellant Chinea, agent Martinez and his two crew members, and two other co-conspirators to an Orlando hotel.

The entire off-load operation was surveilled by DEA agents from the ground and air. The various trucks were followed by surveillance teams from the landing site and subsequently seized. Several persons were arrested that evening and all but a small quantity of marijuana was impounded.

Agent Martinez continued to act in an undercover capacity when on April 23, 1980, he met with co-conspirator Kessler in Miami to discuss the loss of marijuana. On the next day, April 24, 1980, agent Martinez met with appellant Varella and several other co-defendants to discuss the events of April 20. Agent Martinez described to them what transpired in Haiti and Orlando. Appellant Varella described the off-loading in Orlando. Appellant Varella also told several of the co-conspirators that the trucks had been seized and the authorities knew where the group's stash houses were located. They then discussed who would be financially responsible for the loss, and whether they would also be liable for the lost profit as well as the cost of the marijuana. Doubts were expressed about the actual seizure of the contraband by the police since there had been no newspaper accounts. These discussions resumed at a final meeting on May 5, 1980, when appellants Chinea and Varella and Martinez discussed who was responsible and most able to bear the nearly two million dollar loss. The trio also discussed the possibility of another importation to recover some of the loss.

Limitation on Cross-Examination

Appellants Gavin, Chinea, and Varella complain that their sixth amendment rights to confrontation were violated when the district court limited their cross-examination of the two confidential informants who served as agent Martinez's flight crew. The court sustained the government's objections to certain questions concerning the informants' names, occupations, home and business addresses, and names of cases in which they had previously testified. The appellants maintain that this background information was necessary in order to place the witnesses in their proper setting, so that their credibility and motive to testify could be tested.

Prior to trial the district court denied all requests concerning disclosure of accurate information regarding identification, home address, etc., but did order that the two witnesses be produced for interviewing by defense counsel. This was done. At trial, counsel for a non-appealing defendant (Jose Antonio Cabrera-Sarmiento) called these men as witnesses. After a lengthy hearing outside the presence of the jury, the court sustained government objections to the disclosure by the witnesses of any information which might expose them to a high risk of harm. Appellants' cross-examination followed that of counsel for Sarmiento. The informants were not called as government witnesses.

Cross-examination constitutes a vital component of the sixth amendment right of a criminal defendant to confront witnesses against him. United States v. Berkowitz, 662 F.2d 1127, 1138 (5th Cir.1981). And, the right to cross-examine a witness effectively includes a sufficient "opportunity to place the witness in his proper setting." Alford v. United States, 282 U.S. 687, 692, 51 S.Ct. 218, 219, 75 L.Ed. 624 (1931). This opportunity, however, is not unlimited, and the extent of cross-examination is committed to the sound discretion of the trial court. Id., 282 U.S. at 694, 51 S.Ct. 77. "A well-recognized limitation on the right to cross-examine a witness occurs when a disclosure of the information sought would endanger the physical safety of the witness or his family." United States v. Contreras, 602 F.2d 1237, 1239 (5th Cir.1979), citing Smith v. Illinois, 390 U.S. 129, 133, 88 S.Ct. 748, 750-751, 19 L.Ed.2d 956 (1968) (White, J., concurring); United States v. Hansen, 569 F.2d 406 (5th Cir.1978).

The Supreme Court's decision in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957) is the leading case on the scope of the government privilege to withhold from disclosure the identity of persons who furnish information of violations of the law to officers charged with enforcement of the law. In that case, the Court ordered disclosure of the identity of an informant who was an active participant in an illegal drug transaction. The test outlined in Roviaro remains the guide for our decisions today:

We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors.

We have been called upon repeatedly to consider the balance enunciated in Roviaro. An analysis of the case law reveals that a factor of primary importance in striking that balance is the degree of participation exercised by the informant. See, e.g., United States v. Ayala, 643 F.2d 244, 246 (5th Cir. 1981); United States v. Gonzales, 606 F.2d 70, 75 (5th Cir.1980); Alvarez v. United States, 525 F.2d 980, 982 (5th Cir.1976). When the confidential informant is not "an active participant in the criminal activity, but only a tipster, disclosure of the identity is not required...." United States v. Moreno, 588 F.2d 490, 494 (5th Cir.1979). "Thus, even though an informant is present during a critical transaction, the fact that he does not actively participate favors nondisclosure." United States v. Gonzales, at 75. Conversely, where an informer has played a crucial role in the alleged criminal transaction, then disclosure and production of the informer are required to ensure a fair trial. See, e.g., United States v. Jiminez-Serrato, 451 F.2d 523, 526 (5th Cir.1971) (informer was the only participant in transaction who could establish defendant's mens rea). And, in cases where there exists a slight possibility that the defendant might benefit from disclosure, although the informant is more than a mere tipster in the criminal transaction, the law favors nondisclosure where the government can demonstrate a compelling need to protect its informer. United States v. Fischer, 531 F.2d 783, 787 (5th Cir.1976).

Turning to the instant case, "our first task is to evaluate the important consideration of the extent of the confidential informant's participation in the criminal activity." United States v. Diaz, 655 F.2d at 588, citing Suarez v. United States, 582 F.2d 1007, 1011 (5th Cir.1978); United States v. Fischer, 531 F.2d 783, 787 (5th Cir.1976). As this Court noted in United States v. Ayala, "the more active the participation the greater the need for identification." 643 F.2d at 246. While the informants here certainly were more than mere "tipsters," their involvement in this drug transaction was not as integral participants. Rather, we consider their participation to have been nothing more than assisting agent Martinez in flying the DC-6 from Haiti to the United States. Other than assisting in the operation of the aircraft, "the informant[s]' role[s] became that of ... observer[s] while the negotiations were conducted around [them]. When an informant's level of involvement...