U.S. v. Villarman-Oviedo, 01-2197.
| Citation | 325 F.3d 1 |
| Decision Date | 25 March 2003 |
| Docket Number | No. 01-2197.,01-2197. |
| Parties | UNITED STATES of America, Plaintiff, Appellee, v. Federico VILLARMAN-OVIEDO, Defendant, Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
Marlene Gerdts, for appellant.
Thomas F. Klumper, Assistant United States Attorney, with Sonia I. Torres, Assistant United States Attorney, was on brief, for appellee.
Before LYNCH and HOWARD, Circuit Judges, and SHADUR,* Senior District Judge.
Federico Villarman-Oviedo ("Villarman") brings this appeal to raise 16 different issues and errors that he claims necessitate either a new trial or reversal. We deny all of his claims of error, uphold the rulings of the district court and affirm his conviction and sentencing.
In a grand jury indictment returned on March 24, 1999, Villarman together with one or more of his 20 co-defendants were charged in five drug-related counts, including one count of conspiracy (1) to possess with intent to distribute and (2) to distribute five kilograms or more of cocaine, one kilogram of heroin and multi-pound quantities of marijuana. On April 4 Villarman was arraigned, entered a not guilty plea and was ordered detained pending trial. That indictment was superseded on April 21, and again Villarman was arraigned and ordered detained without bail on April 29. On May 5 the grand jury returned a two-count second superseding indictment against Villarman and 23 co-defendants. Then on May 13 he was again arraigned, again pleaded not guilty and continued to be detained.
On August 25 Villarman submitted an urgent motion requesting a de novo bail hearing. After conducting such a hearing on September 17, the district court denied Villarman's motion and approved the order for detention pending trial.
Ultimately (on April 18, 2000) the grand jury returned a four-count third superseding indictment against Villarman and eight co-defendants. Count One, the only count in which Villarman was named, charged:
From on or about March, 1998 up to and including the date of this indictment, in the District of Puerto Rico and within the jurisdiction of this Court, [named defendants including Villarman], the defendants herein, and others to the Grand Jury known and unknown, knowingly, willfully, intentionally and unlawfully did conspire, confederate, and agree with each other and with other persons to the Grand Jury known and unknown, to knowingly, intentionally, and unlawfully possess with intent to distribute and distribute:
a. five (5) kilograms or more, the exact amount being unknown, of a mixture and substance containing a detectable amount of cocaine, a Schedule II Narcotic Drug Controlled Substance;
b. one (1) kilogram or more, the exact amount being unknown, of a mixture and substance containing a detectable amount of heroin, a Schedule I Controlled Substance; and
c. multi-pound quantities, the exact amount being unknown, of a mixture and substance containing a detectable amount of marijuana, a Schedule I Controlled substance.
All in violation of Title 21, United States Code, Section 846.1
Villarman and other co-defendants then filed multiple motions to suppress evidence gathered from wiretaps or, in the alternative, for the conduct of a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Those motions call for backtracking somewhat in reviewing the chronology of the case.
On May 1, 1998, a wiretap application for cellular phones in Puerto Rico had been authorized by District Judge Daniel R. Dominguez of the District of Puerto Rico, based on the government's application and supporting affidavits. Information in the affidavits originated in a New York investigation into a drug conspiracy, which expanded to Puerto Rico when the government learned of telephone calls to New York narcotics distributors from a Puerto Rican cellular phone. In the wire-tap application the government cited telephone toll records, criminal history records of the targets, undercover purchases of heroin in New York, conversations from wiretaps established in New York and information that the cellular phones continued to be operational. In addition the government described how traditional investigative techniques would not be effective in investigating the drug conspiracy within Puerto Rico because the targets tended to be highly suspicious.
On June 16, 2000 the district court found that there had been sufficient pre-wiretap investigation to justify denial of any suppression of the wiretap evidence. After describing some of that investigation, the district court found that the authorization of the wiretaps was reasonable because the nature of the conspiracy made it likely that routine investigatory techniques would fail.
In that same opinion the district court also considered how Villarman's allegations of perjury in the government's affidavit in support of the wiretap could impact the motion to suppress the evidence. According to Villarman, the affidavits had failed to disclose that the government had a confidential informant who was being debriefed by the government and had provided much of the information for the wiretap application. In addition, Villarman contended that the government should have informed issuing Judge Dominguez about testimony in front of another judge, Judge Aracelia Acevedo of the Puerto Rico Commonwealth Municipal Court. Two Drug Enforcement Administration ("DEA") Special Agents, Julie de Mello ("de Mello") and Iván Rios Grajales ("Grajales"), had given oral testimony under oath in connection with their request for an arrest warrant against two co-defendants in this case, Carlos Soto del Valle ("Soto") and Joaquín Cruz Jiménez ("Cruz"). De Mello and Grajales did not advise Judge Acevedo that they were conducting a federal investigation and that they had wiretap communications. Villarman cites Judge Acevedo's affidavit (describing how agents testified that they had received information about Soto's and Cruz' activities from a confidential informant) as evidence of perjury in the affidavit for the wiretap application, which declared there was no confidential informant who could assist in the investigation of the Puerto Rico conspiracy.
Finding that the alleged perjury was simply a misunderstanding by the state judge of the agents' use of the Spanish term "confidencia" (meaning only "confidential information," not a nonexistent Puerto-Rico-based confidential informant), a misunderstanding that was the product of a federal gag order forbidding reference to the wiretap (which had indeed provided the "confidential information"), the district court held that no illegal activity had occurred. Villarman's request for a Franks hearing to review the sufficiency of the evidence was also denied.
On October 10, 2000 the United States informed Villarman that it anticipated calling DEA Special Agent Reinaldo López ("López") to testify about factual matters and maybe as an expert witness. Villarman was also informed about López' background and experience, as well as the general context of his testimony. On October 12 Villarman submitted a motion to strike expert testimony, to which the government responded on October 13 and 16.
On October 15, 2000 the case against Villarman began, and the jury trial lasted nearly two weeks. During the trial the government presented its case through numerous witnesses, including López and cooperating witness Isaias Valerio ("Valerio"), as well as 16 intercepted phone calls that involved Villarman talking (1) to co-defendants Cruz and Soto (both individually and together) and (2) to cooperating witness Valerio, using one of co-defendant Soto's cellular phones.
López presented testimony about general narcotics activities in Puerto Rico as well as interpreting coded language in the intercepted telephone calls. López had listened to over 5000 intercepted calls during the course of this investigation, as well as having many years of experience and training in narcotics investigations. Villarman made motions and interposed contemporaneous objections asking that López not be allowed to testify as to the content of the taped conversations because he was not certified as an expert, nor had he been a participant in the conversations. Finding that López was testifying to his personal experiences in listening to the tapes, the district court ruled that the testimony should be considered lay opinion testimony under Fed.R.Evid. ("Evid.Rule") 701, not expert testimony governed by Evid. Rule 702.
During the course of the trial, cooperating witness Valerio testified for the government about his relationship with Villarman and their narcotics distribution activity. Valerio discussed how he and Villarman had transported 300 to 350 kilograms of cocaine from Puerto Rico to New York between 1998 and 1999. Valerio also testified about how he and Villarman used coded words to discuss narcotics and also analyzed a taped conversation in which he and Villarman spoke about several kilograms of cocaine that had gotten wet. Valerio also discussed taped conversations between Villarman and other co-defendants in which wet cocaine was discussed.
During the trial Villarman moved for a mistrial, arguing that Valerio's testimony about the 300 to 350 kilogram cocaine transaction violated Evid. Rule 404(b). In denying the motion, the district court determined that the conduct formed part of the charged conspiracy and was therefore not Evid. Rule 404(b) material. Villarman later moved pursuant to Fed. R. Crim P. ("Crim.Rule") 29 for a judgment of acquittal, which the district court also denied.
Villarman testified at trial over a span of three days. Villarman admitted that it was his voice in the taped conversations and that he had spoken to co-defendants Soto and Cruz about obtaining cocaine for them. He also admitted to using...
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