United States v. Fabio Rodriguez Cortes, United States v. Eduardo Ocampo-Hoyos, United States v. Rafael Perez Martinez

Malik, v. Cir.1991).

Affirmed. STATES, Appellee,

UNITED

v. CORTES,

Fabio RODRIGUEZ

Defendant, Appellant. STATES, Appellee,

UNITED OCAMPO-HOYOS,

Eduardo

Defendant, Appellant. STATES, Appellee,

UNITED MARTINEZ, PEREZ

Rafael

Defendant, Appellant. 91-1055, 90-1921,

Nos. 90- and 90-1978. of Appeals, States Court

First Circuit. Aug.

Heard 1991.

Decided Nov. Kalisch, August DEA Task Force with whom Kalisch & T. Scott Morales, Gables, Fla., brief, working for Jose undercover Lyons, Coral Ocampo-Hoyos. brothers, “Jose,” negotiated Edwardo with two appellant Sierra, and Eliezer and Libardo Jose Eduar- LaClair, with whom Alvin E. Stephen A. “Junior,” Lozada, also known as leaders do Schwartz, Entin, Goldman, Mar- Entin and drug organization, im- of a Colombian Miami, Fla., Moore, brief, were on gules & large of cocaine from port quantities Co- Perez Rafael Martinez. appellant for Rico. After an initial lombia to Puerto P.R., Rey, Hato Aguayo, R. Jose conversations, phone round of the Sierra Rodriguez Cortes. Fabio appellant agreed twenty-six kilo- to send brothers Vazquez, Atty., Asst. U.S. O. Edwin grams of cocaine to Morales. The Lopez-Romo, Atty., F. U.S. Daniel whom cocaine, plan was that a suitcase with brief, P.R., appellee. on for Rey, was Hato “Carmen,” code-named would be sent Flight Airlines 653 on Octo- aboard LACSA SELYA, Judge, Circuit Before 22 to Luis Munoz Marin International ber BOWNES, Judge, and Circuit Senior Airport price The for the Puerto Rico. WOLF,* Judge. District $312,000. Agent cocaine set at Mo- agreed pay rales also to the Sierras Judge. BOWNES, Circuit Senior $20,000 settle a extra to debt owed Cortes, Rodri- Rodriguez Robinson Fabio Agent de Armas. Morales certain Frank Cortes, Ocampo-Hoyos,Mar- Eduardo guez agreed payments to make two cash Pantoja and Rafael Perez itza Candelaria representatives They of the Sierras. would arrested in November of were Martinez come to Puerto Rico from Miami and would Drug federal Enforcement during employees of the identify themselves as (DEA) of a investigation Administration by giving passwords the correct Sierras operation. The five de- cocaine Colombian Morales. conspiracy jointly tried fendants were import cocaine into the United States government agents On October Robinson and other related offenses.1 in Puerto Rico seized the suitcase when Rodriguez acquitted of Cortes was flight. designated off the It held came brother, charges against him. His Fabio per kilograms of cocaine as twenty-six Cortes, along Eduardo Rodriguez with agreed agreement. It had been before- Martinez, Perez Ocampo Hoyos and Rafael shipment payment for the would hand that challenges Each appeal their convictions. installments. The Sierra made two be underlying sufficiency of the evidence course, brothers, did not know that the raises other claims his conviction and confiscated. On October suitcase had been Pantoja is not appeal. Maritza Candelaria Agent told Morales that Libardo Sierra appeals. in these involved representatives arrive next would day and collect the first installment of THE EVIDENCE $168,000. They identify would themselves “Libardo, passwords, Jose Eduar- with mainly of recorded The consists do, que trajo por la encomienda undercov- venimos telephone conversations between English Roughly translated into Carmen.” of the cocaine agents er DEA and members “Libardo, Eduardo, Jose we this means: conspiracy. * Massachusetts, sitting ting facilitating conspiracy by desig- the crime of and Of the District of territory import of the nation. cocaine into customs States in violation of Title 21 U.S.C. charged with con- all defendants 1. Count One 843(b). Ocampo Hoyos Eduardo Defendant § terri- spiracy import cocaine into the customs charged in Count Six of the indictment with in violation of 21 tory the United States 952(a) using facility committing Defendants Fabio and 963. a communication §§ U.S.C. Rodriguez Rodriguez Robinson facilitating conspiracy Cortes and and the crime of im- charged Three of the in- in Count Cortes were port territory customs cocaine into the aiding abetting each other in and dictment with 843(b). United States in violation of 21 U.S.C. § facility in commit- a communication the use of Agent Rodriguez When Other Robinson Cortes. get the errand of Carmen.”

come to Tuesday following arrive the asked this?” Robinson agents would Morales “Who is due, Wednesday to the balance collect replied, “It’s from and Libardo.” Carmen “Libardo, encomienda using passwords, then Agent Morales asked Robinson English translation de Carmen.” “No, code, replied, and had a Robinson “Libardo, On for Carmen.”2 the errand then, that, it,” “Only that’s Libardo Eliezer Si- 81, Agent told Morales October and Carmen.” money. no one come for erra with p.m., At 3:40 after the encounter spoke 4, Agent Morales November On Andres Agent Agent Willy, Morales told and was Eliezer Sierra and Junior undercover, Amador, met working also in Puerto their collectors would appellant Rodriguez Cortes Robinson arrived, one how- afternoon. No Rico that Inn Rodriguez the Dutch Cortes at Fabio ever, payment as scheduled. to collect entered Hotel. The two brothers Morales received days later Two car, introduced themselves Morales’ identified herself from a woman who call “Pecos,” explained “Robin” and Agent Morales Maritza told as “Maritza.” by a they had sent from Miami wom- been Inn at the Dutch and would that she was $163,000 of Libardo an to collect on behalf Another under- leaving that afternoon. that the two were and Carmen. Convinced Agent Lampón, posing agent, Jorge cover ar- part conspiracy, Agent Morales woman, “Lito,” from a received calls rested them. “Mari,” and a man. identifying herself as had Agent Lampón that she Mari told re- Morales Amador then Agents and “come for Carmen’s errand.”3 Dutch Morales had turned to the Inn where meeting a Maritza Candela- scheduled with spoke day Agent Morales That same Perez Pantoja appellant and Rafael ria himself “Wil- an individual who called with Mar- Both Candelaria and Perez Martinez. agreed to him at a local ly” and meet got agents’ car and at tinez came over King Willy arrived Burger restaurant. lot, King Agent Agent Morales who had sent Burger parking and in. asked purpose questioned they him about the Candelaria were sent Morales them. said meeting. Willy he had Miami, said that Martinez “Amparo” of their and Perez from____ added, on behalf of Libardo Carmen’s come For Car- “For errand for Carmen. package and documents said, Agent let me men.” Amador “Wait him Agent Morales asked about When you, very this a matter and we tell serious money, Willy suggested that and suitcase clear, you on the know the want to be they call Colombia to find out what was bring.” this could Perez Mar- problems Agent going on. Morales assumed that “160,000 replied, bucks.” After tinez Willy drug did not know transac- about empha- exchange Agent in which Morales arresting go and let him him. tion without mix- his concern that there could be a sized up in the deal and was the asked Libardo day Agent Morales received Also dealt, person whom Perez they with telling him call telephone several calls answered, 721-0810, Agent Martinez “Yes. Correct.” at room 303. “Pecos” added, person Candelaria I have it here spoke did so and “Wait Morales that of he later identified as written down At one whose voice the notebook.” stand, opinion, Lampón Throughout the of this we been called have remainder he would English reporter’s court transla- shall use the telephone testified that he received a call on testimony. transcripts All of the and tions of November 6 from a her- woman who identified including quote, dialogue which we shall Mari, begin- self as and that Mari stated at testimony Agent Morales and the courtroom conversation, ning of the “I come for Carmen's which were and the conversations defendants tape parties stipulated errand.” The that this state- government, has been recorded Agent Lampón not ment was recorded because English. Spanish into translated from time; tape only did not turn on the recorder on part a later of the conversation was recorded. Maritza and defendant 3. The Pantoja Agent stipulated that had Candelaria thing Lizar- fine?” point, Ocampo answered, talked “Jose and Candelaria about do,” her, fine, corrected “Libardo.” “Everything and Morales I’m here to see Jose [is] from Libardo and Jose Eduardo for the that Candelaria and Perez Convinced Ocampo errand Carmen.” As soon as [of] conspiracy, involved in the Martinez were gave passwords, he was arrested. Agent bridge drove to where Morales by police they had been were arrested who evidentiary More supplied details bewill purse con- stationed there. Candelaria’s during our ap- discussion of the individual telephone tained a black book which peals. Agent telephone and the Morales’ number “Jose,” “Lisandro,” words and “on behalf Rodriguez Fabio Cortes of Carmen” were written. Rodriguez Cortes, Pecos, a/k/a Fabio day a called herself The next woman who only appeal: raises one issue on the suffi- from to tell “Soledad” called Miami ciency jury of the evidence.4 The found expect a Rican Morales to Puerto woman guilty him of Counts and Three of One and her to collect named Maritza husband conspiracy import indictment: cocaine $160,000. explained that Maritza Soledad territory into the customs of the United on be- password,

would use the “Lisandro violation of 21 U.S.C. sections Agent Morales half When of Carmen.” 952(a) aiding abetting password “Libar- told that the Soledad facility the use of a communication com- do,” “Lisandro,” Mar- said that Soledad felony in mit a of 21 U.S.C. violation sec- pass- wrong itza and her husband had the 843(b) tion section 2. U.S.C. word. To determine whether the district morning On Libardo November properly court denied the defendant’s mo to tell him that Sierra called Morales acquittal, tion for we review the evidence in payment. two men collect the entire would light govern the the most favorable to gone wrong what had with Sierra asked ment, including all inferences reasonable to Agent Willy. He then told Morales not to helpful government’s posi be drawn once any questions ask time and that Valencia-Lucena, States v. tion. United password the he should hand over heard 506, (1st Cir.1991) (citations 512 F.2d 925 the La- money without further discussion. omitted). verdict uphold jury We will morning called ter that Libardo Sierra juror viewing reasonable ‘after the “any Agent again and said that Morales light favorable to the most friend, “Ed, English” had from Eduardo found the essen prosecution ... could have had called him from Puerto Rico and beyond of the crime a reason tial elements agreed up Roughly pick money. to all the ” Walters, v. able doubt.’ United States later, Agent two hours Ed and Morales 765, (1st Cir.1990) (emphasis F.2d 770 904 spoke. calling he was to receive Ed said (citations omitted). original) mayWe Agent the for Carmen. Morales errand not, course, credibility of the the assess Eduar- later identified Ed’s voice as that of Serrano, witnesses. United States v. 870 ar- Ocampo Hoyos. Agent do Morales 1, (1st Cir.1989) (citations omitted). F.2d 5 ranged meeting day. A for a that short disprove every government The need not ad- designated time later he arrived at the hypothesis innocence if reasonable gave Ocampo The address he Ho- dress. supports a verdict record as whole yos meeting building that for the was the beyond a doubt. guilt “ reasonable Id. the central office of the DEA. housed trier of fact is free to choose Hoyos signifi- did not Ocampo realize ‘[T]he Agent among various constructions of cance of the address. Morales reasonable evidence____’” “Well, him, up, every- v. asked and States Hil what’s United numbers, by two 90-1921 the evidence. After his motion for reconsid- We note that docket 91-1055, Rodriguez’ assigned granted, origi- been to of sentence and his and have eration was 90-1921, reduced, Rodriguez appeal. appeal, filed a The defendant’s first nal sentence new appeal that an error been made at sentenc- notice of which was docketed 91-1055. claimed ing had supported Appeal his conviction not 90-1921 is moot. and that 538 (cita

ton, 485, (1st Cir.1990) he and person that at the 488 another were “casino,” omitted). Hotel, or Dutch Inn and would tions meet him At there at 3:30 that afternoon. partic prove Rodriguez's To Morales, p.m., Agent 3:40 accompanied government conspiracy, ipation Agent Amador, arrived in of the front conspiracy existence of a had show the There, they Dutch Inn called to Hotel. voluntary knowing and and defendant’s Rodriguez, got Robinson and who Fabio v. Bena participation in it. their introduced him- into car. Robinson 378, Gomez, Cir. vente 380 “Robin”; as himself self Fabio introduced defendant 1990). prove “In that a order “Pecos.” as conspir in a belonged participated to and government prove must two kinds acy, the that, Agent testified “As soon Morales intent; agree intent and intent they got in, talking as we started about offense.” commit the substantive deal, twenty- money, about about 1073, Rivera-Santiago, kilos, suitcase, deal six about the about the denied nom. (1st Cir.), cert. sub Cas just place, had that the that taken fact States, tro-Poupart v. United 492 U.S. money The going to be delivered.” 910, 3227, (1989), 109 S.Ct. L.Ed.2d conversation, transcript of the recorded States, Romero-Lopez v. however, any men- specific does not reveal L.Ed.2d 68 U.S. 110 S.Ct. drugs, twenty-six kilos of co- tion (1989). agreement may tacit or be caine, explained or suitcases. Robinson proven express circumstan “lady” them that a had sent from Libardo id. Fur evidence, express tial well as said, Carmen. then “One Robinson thermore, prove need sixty-three hundred thousand side one] [on knew the details that the defendants all of crap.” Libardo and all Robinson or its “All conspiracy members. Agent also indicated that he knew that required is show ‘the essential traveling Europe, in- Morales been plan nature of the and [the defendants’] given formation which Morales had ” Id. Blu (quoting connection it.’ only Sierra brothers. After States, menthal United 332 U.S. money Morales said he had the in $100 (1947)). L.Ed. 154 S.Ct. denominations, him to Fabio told $50 that Fabio claims the buy money The brothers were orders. prove beyond failed to a doubt reasonable then arrested. knowledge conspiracy he of that the arrests, agents After the the from seized govern participate intended to it. The piece paper a was Fabio of white which the against ment’s included evidence Fabio telephone, beeper and num- written account Morales, tape re testimony Agent Jose bers, address, names, including an two and conversations, cordings and of various Agent “Jose.” Jose was Morales’ under- physical seized from the defen telephone name. The number was cover Agent testi dant after arrest. Morales his given Agent the one Morales 6, p.m. at 2:30 fied that about on November pay- to used Sierra brothers be their 1989, he row. received two calls a ment collectors. Also seized from Fabio both, call at 721- he was told to “Pecos” $4,000 personal checks for each. were two Agent made 0810 303. Morales room $9,500 signed by check for de A Carmen Cortes, call; Rodriguez the Robinson Alvarado,5 undated and not made out to Cortes, Rodriguez a/k/a brother Fabio from anyone, was seized Robinson Rodri- Pecos, picked phone. Agent up the When guez Passports round-trip Cortes. and air asked, Morales “Who is this?” Robinson Barranquilla, tickets from to Mia- Colombia replied, from Carmen and Libardo.” “[i]t’s mi were also seized from the brothers. Agent Morales asked if he had a When “No, code, Despite Rodriguez’s explanations male said an unidentified then Fabio arrest, leading up told Morales Agent that’s it.” Robinson for the events his we 5. Carmen de Alvarado has not been identified.

539 venture, participated in it as in government’s find evidence was some- prove beyond thing about, bring reasonable wished to sufficient and participated in the sought by doubt that the defendant it his actions to make succeed. import cocaine. Rodri- conspiracy to Fabio Garcia-Rosa, States gave good his guez and brother Cortes 209, (citations Cir.1989) omitted), passwords. They approximation of denied, 1030, 742, cert. U.S. S.Ct. money they much exactly knew how were (1990), L.Ed.2d and vacated on sug- supposed It was Fabio who to collect. grounds other sub nom. Rivera-Feliciano gested Agent Morales convert — States, U.S. -, v. United 111 S.Ct. checks, large money orders. The bills into 377, (1990). 112 L.Ed.2d 391 signed one of “Carmen de Alva- which rado,” government’s that the brothers Rodri- indicated evidence on III guez being paid handsomely following. their is the Count On were November against Agent uphold messages efforts. conviction Morales We received Rodriguez Fabio Cortes on count I. from unknown source to call Pecos at a number which turned out to be the Dutch challenges the also sufficien Fabio Inn Hotel. Agent Morales made the call underlying cy of his conviction the evidence spoke Rodriguez and with Robinson Cortes. III of the indictment on Count III. Count Agent speak Morales did with Fabio charged with: both brothers Rodriguez telephone.8 Cortes over other, knowing abetting each aiding and from Seized the defendant at the time of unlawfully [using] a ly, intentionally and a piece paper arrest was white is, facility, that the tele communication beeper Morales’ number and tele- committing facilitating phone, in phone number on it. written conspiracy the crime of commission of import territory into the customs Rodriguez Because Cortes Fabio place from a outside there import cocaine, conspiracy convicted of of, Colombia, wit, Republic of co responsible co-conspir- he is for the acts caine, Drug II Narcotic Con a Schedule conspiracy. to further the ators committed All in of Ti trolled violation Substance. States, 328 U.S. Pinkerton v. United Code, tle Section 1183-84, 646-47, 90 L.Ed. S.Ct. Code, 843(b)6 Title United States (1946). no doubt There can be Section 2.7 telephone call between Morales circuit Rodriguez It is that: Robinson Cortes furthered established Rodriguez conspiracy in which Fabio culpable aider and abetter need not participated. The conviction Fa- offense, Cortes perform the substantive Rodriguez on count three as an bio Cortes performed, present or be when telephone using aider abetter of its execution. aware of the details to conspiracy and a im- Instead, aiding abetting facilitate commit and to establish cocaine the af- port must into United liability, prove the firmed. the defendant associated himself with wire, radio, mail, (1988) 843(b) telephone, states: and includes and

6.21 U.S.C. § all other of communication. means any person unlawful know- It shall be any intentionally ingly to use communica- or commits § 7. 18 U.S.C. 2 states: "Whoever an committing causing facility in or in or tion aids, abets, against United States or offense counsels, commands, the facilitating any the commission of act or acts procures or induces its felony any constituting provision under of a principal.” punishable as a commission is chap- subchapter subchapter II this this of separate tape-record- use of communication transcript ter. Each November 6 8. The separate facility Agent this shall be a offense under Morales and ed between conversation subsection, purposes Rodriguez Pecos as subsection. For Robinson Cortes lists facility” any Agent spoke. person means At the term "communication with whom Morales trial, however, acknowledged public private and instrumentalities Morales and all Fabio, Pecos, writing, it was but used or useful in transmission of not with a/k/a spoke. signs, signals, pictures, or sounds of all kinds Robinson with whom listening to evidence on its Ocampo Hoyos the card and Eduardo it admissibility, the court ruled that would Hoyos found Ocampo was Eduardo evidence, stating: in be admitted the indict- One and Six of guilty on Counts judge And the after THE COURT: import cocaine into the conspiracy ment: will, if hearing arguments of counsel in territory of the United States customs it and moves it identifies Government 952(a) sections and of 21 U.S.C. violation foundation, I after I see the into evidence facility to 963; using a communication and making I’m it into evidence. will admit into the felony (importing cocaine commit a weighing the factors men- a—I’m now States) territory of customs by counsel under Rule 403 tioned both 843(b). section 21 U.S.C. violation of [probative] I think that the relative and ap- four Hoyos raises issues on Ocampo outweighs prejudicial it’s ef- value [sic] (1) into evidence of peal: the admission fect. identification unauthenticated Colombian all, it tends to demonstrate First misconduct; (3) card; (2) suf- prosecutorial willing be more that a Colombian would counts; ficiency the evidence as both anybody than to trust another Colombian (4) propriety of a “willful blind- and else, argument if the of the Government jury ness” instruction. verdict, jury that he by the is validated leading Ocampo Hoyos’ ar- The facts 168,000 dollars, not came here to collect can be summarized rest conviction shipment for that only what was owed testified that on briefly. Morales 20,000 included that but also the dollars 8, 1989, Libardo Sierra called November directly Eliezer is owed to Libardo and a call from say him that he had received Sierra; secondly, has the it also Ed,” in Puerto Rico. Libardo his “friend according tape name Edward and Agent Morales to make instructed both heard, Mr. Sierra identi- just we Libardo later, A payments to Ed. few hours Edward, “Eduardo,” fied him as not as Hoyos Agent Mo- Ocampo called Eduardo prove tend to and that would arrange meeting to collect the rales to being in all these con- name that is used as scheduled at money. Ocampo arrived he, the one that Libar- versations meeting place, building housing do, says him in that is what knows headquarters, password giv- said the DEA card. Sierra, Agent Morales Libardo en to So, if the Government moves that into he entered the elevator. arrested as on, my later that would be rul- person Ocampo’s after his arrest Found ing under Rule 403. password, piece paper subsequently The card was moved evi- number, beeper ad- Agent Morales’ dence and admitted as exhibit 53. Humber- headquarters, the DEA and the dress of Deliz, Ocampo Hoyos, testi- a friend of “Lito,” an- name the undercover name of Ocampo Hoyos fied that was bom Co- investigation. agent involved other spent most of his life in the lombia but A identification card was also Colombian States; years nineteen that he was Ocampo Hoyos. seized from old; card, showed and he used the which Ocampo begin our discussion with We age, twenty-three years him to Hoyos’ that an unauthenticated Co- claim Miami, beverages purchase alcoholic improperly identification card was lombian age twenty-one. drinking is where into evidence. Defendant moved admitted not contradicted in This evidence was in limine to exclude the admission of the part. whole or in The card Colombian identification card. Rule picture had a of the defendant on it and Federal of Evidence 403 Ocampo Hoyos requires stated that was the trial court to balance the rele Edward 1, against January born on either 11 or November vance of evidence the substantial 1967, Cali, examining to the prejudice in After risk of defendant.9 Such Colombia. relevant, though pertinent part: evidence be excluded if its in "Al- Fed.R.Evid. 403 states are the with the name did not make admissions of evidence within Edward it the trial likely sound discretion of court. United more person that he was the referred McMahon, 1501, 938 F.2d by States v. as “Ed” Sierra. Libardo (1st Cir.1991). will not disturb such We are We more the assump- disturbed of rulings discretion. absent an abuse underlying tion the court’s second asserted Medical, Inc., 930 v. Deseret Knowlton ground admitting In relevance. Cir.1991); 124, (1st 116, Pittsley F.2d evidence, general- the trial court relied on (1st Cir.1991); Warish, Unit izations about natives of Colombia. The Green, (1st F.2d ed States v. stated, presence district court outside Foley, Cir.1989); jury, that the card “tends to demon- Cir.1989). will, We neverthe that a strate Colombian would be more less, a lower court’s determination reverse willing to trust another Colombian than Green, “exceptional circumstances.” else____” anybody The trial court as- (citations omitted). 887 F.2d at 27 We find that sumed since the other members of the exceptional that such circumstances exist Colombians, conspiracy were it was more in this case. likely defendant, than as not that find that court district We Colombian, conspir- would know about admitting iden abused its discretion acy and be entrusted a courier. as finding The court’s card. trial tification intended, Whether the effect of proposi relied on two distinct relevance the introduction of the identification card assumption tions. court’s first was The jury into evidence was to allow the to de- likely that made it more that the card guilt Ocampo Hoyos’ termine sup- based on Ocampo Hoyos the “Ed” referred to in was posed nationality. prosecutor said The as telephone tape-recorded conver one argument: much in his closing person up pick sations as the who would I.D., You also have Colombian Second, drug payments. the court Government’s exhibit there [sic] likely is more found that a Colombian place states the the date where this trust Since the card another Colombian. young man and it states “Cali” was born Ocampo as a Hoyos identified “Colombi card, and that is I.D. Cali a Colombian is an,” reasoned, it was the court therefore man, one of the This cities of Colombia. Ocampo Hoyos likely more that would be young Colombia, man has ties with large of a entrusted with the collection sum you reasonably infer why from there can of money. calling Libardo Sierra him his friend. mistakenly that trial court believed context, as In this could be taken an tape person recording to in the referred appeal to find the jurors defendant and Libardo between Morales Sierra was origin, guilty by national in- reason of his actuality, In Sierra referred to “Edward.” viting person them to that if a believe is giv- Ocampo’s an “Ed” not an “Edward.” Colombia, must born then he be involved as en name “Eduardo” would be consistent drug trafficking. form of reason- This name with the nickname “Ed” would the ing prejudice precisely type found on the identification card. “Edward” Federal Rule of 403 is intended Evidence it more probable The card did not make against. guard The authors of the Federal the “Ed” Ocampo Hoyos referred against Rule Evidence warned Sierra. purely that induces on a a “decision emo- Further, did an even Sierra refer to ...”; tional basis creates and which an in the conversation Mo- “Edward” tendency suggest “undue a decision rales, there is no evidence the name improper basis.” Fed.R.Evid. 403 advis- unique unusual or either Edward was ory committee’s note. It is Puerto or Colombia. a common Rico Doe, That name in States. the defen- the United States v. (D.C.Cir.1990), carrying an card dant identification the D.C. Circuit Court of substantially probative outweighed danger prejudice____” value is of unfair 542 920,

Appeals (1st Cir.), held denied, district court erred in 924 cert. 488 U.S. expert 925, 109 admitting testimony concerning 308, 102 (1988)(a S.Ct. L.Ed.2d 327 drug operation method of of Jamaican deal judge when, trial abuses his discretion in played ers and the role Jamaicans the making issue, the determination at he relies drug trade in the District of Columbia. Id. improper factor); on an Indepen see also prosecutor at 23. The court noted that the dent Oil & Chem. v. Proctor Workers & frequently referred to the defendants as Co., 927, Mfg. Gamble 864 F.2d 929 “Jamaicans,” in summation stressed Cir.1988) (same). expert of Jamaican control One final part comment on this trafficking. drug Though over Id. at 18. this issue. pros Defendant claims that the arguably probative, the evidence was argument ecutor’s constituted misconduct. “ court observed ‘discrimination on the We do not think so. The card was admit race, odious in all aspects, espe basis of is ted into prosecutor evidence and the used it cially pernicious the administration of argument only could; way he ” 21 justice.’ (quoting Id. at Rose v. Mitch exploited potential prejudice. its for This ell, 545, 555, 2993, 3000, 443 U.S. 99 S.Ct. is prosecutor distorting not a case of a (1979)). L.Ed.2d 61 739 The court noted prosecutor’s exhibit out of context. The appeals that evidence that jury’s signal comments followed the the district racial or ethnic impermissibly bias gave court when it ruled the card admissi sway jury’s verdict. Id. at 21. It con Although prosecutor’s ble. comments by holding cluded that evidence that im improper, given were the context in which properly plays upon such place bias has no admitted, they the card was did not rise to trial. a criminal Id. at 22. the level of misconduct. holding We find the observations and Though the trial court abused its discre particularly pertinent the D.C. Circuit tion, the issue still remains whether the admitting the facts of this case. admission of the card was reversible error. card, judge identification the trial failed to government The ques never addressed the take into account the inherently prejudicial tion of whether the court’s admission of the nature of the evidence. A identifying card card, error, would be In keep harmless. the defendant as a native Colombian could ing with this circuit’s well-settled rule that was, fact, have been used as the waived, appeal issues not raised on are see making generalizations basis for about all Zannino, 1, United States v. 895 F.2d 17 The Colombians. admission of the card as (1st Cir.), denied, 1082, cert. 494 U.S. 110 likely an exhibit made it more that whatev 1814, (1990); S.Ct. 108 L.Ed.2d 944 Brown preconceived er jury might notions the Univ., 337, v. Trustees Boston 891 F.2d have had drug about Colombians and traf — (1st Cir.), denied, -, 352 cert. U.S. ficking infect the pro would deliberative 3217, 110 (1989), S.Ct. 110 L.Ed.2d 664 it is 403, cess. Under Federal Rule of Evidence likely government that the in this case has probative evidence that is but “substan waived the argument. harmless error tially outweighed by danger of unfair It is a case of impression first prejudice” may for this excluded. Because the whether, when, circuit quite low, threshold for relevance is a court should engage in a analysis card harmless error identification did meet the sua Federal sponte requirement. notwithstanding government’s Rule of Evidence 401 See procedural Tierney, 382, default. The Seventh Circuit (1st Cir.), denied, has cert. ruled that government U.S. waives a (1985). S.Ct. L.Ed.2d 108 harmless error Contrary analysis if not raised on court, however, appeal. district Giovannetti, we find that United States v. potential prejudice (7th the card’s F.2d Cir.1991); far out see also Unit weighed any probative might value it ed have Pryce, had. district court (D.C.Cir.1991) abused its (D.C. discre agreeing Circuit admitting tion in general identification card. approach though explicitly Hastings, See United States v. finding analysis). waived

543 argue government’s failure to brief and Circuit is in the Seventh The rule is, itself, error an indication that harmless may, sponte, enter appeals sua the court of recognized it how harmful the evidence only after an inquiry error a harmless into the was. factors: of three examination “[1]

length and whether whether errors the district costly and found is a reversal will the harmlessness ultimately futile court.” complexity of certain or Giovannetti, result debatable, and of the error proceedings protracted, record, 928 F.2d ^{[2] [3]} is must, therefore, order a new trial. other admission of the identification Because we unnecessary claims on find to review appeal. reversible Ocampo Hoyos’ error in the card Thus, we it 227; F.2d at 1348 Pryce, 938 at see also Rafael Perez Martinez specific approach but not (adopts general jury found Rafael Perez Martinez factors). indictment, guilty on Count One of ap said for There is much import cocaine into the cus- conspiracy to clearly harmless error In a case of proach. territory of United States viola- toms resources judicial it would be a waste 952(a) tion of 21 sections U.S.C. result is require a new trial where ap- Perez Martinez raises four issues case, it complex the same. a likely to be evidence; (2) (1) sufficiency peal: judicial re equally wasteful would be continuance; (3) of a propriety of a denial appellate bench require the sources to from evidence of two documents exclusion record complex a independently into delve Procedure under Federal Rule of Criminal government’s brief aid of the without the (4) 16(d)(2); trial court’s classifica- responses to it. See and the defendant's sentencing pur- of the defendant tion 1348; also Giovan F.2d at see Pryce, 938 “mini- opposed poses as a “minor” netti, 928 F.2d at 227. 3B1.2. under U.S.S.G. participant mal” § a definite not formulate We need Sufficiency the Evidence A. instance, the harmful today. In this rule facts in and the examine Raising the We of the error obvious. ness govern to the light most favorable we find analysis sponte sua harmless error inferences ment, drawing all reasonable card of the identification that the admission position. Va supporting government’s that rea prejudicial and for blatantly 512; lencia-Lucena, F.2d at For non-constitution reversible error. son (1st Geer, Cir. 923 F.2d v. Federal Rule of States evidentiary errors under al 380; Gomez, at 1991); Benavente find error this court will Evidence 403 “[a]n Santana, F.2d high that it is if determine is ‘harmless we Cir.1990). uphold jury (1st willWe contrib 824 the error did not ly probable that ” juror “any reasonable Gomez, guilt verdict Benavente to the verdict.’ ute light in the viewing the evidence ‘after (citing States v. F.2d at 386 prosecution ... could most favorable Gonzalez-Sanchez, beyond a elements the essential have found Cir.1987)). ” Valencia-Lucena, reasonable doubt.’ the error likely that it is far too Here original) (emphasis 925 F.2d at 512 rights. Ocampo Hoyos’ substantial affected omitted). (citations case; have very close would It was credibility of not assess By “This court will very little to tilt the balance. taken Valencia-Lucena, F.2d at witnesses,” egregiously basing admissibility on to dis- require “the nor reason, colored the subse- wrong the court of inno- hypothesis every reasonable prove or not the quent proceedings. Whether (citation Serrano, F.2d at 5 court’s cence.” attorney followed the prosecuting guilty Rather, uphold a omitted). will we lead, attorneys did everything that both supports a a whole if the record as nec- judge ruled was verdict from the moment the beyond reasonable guilty knowledge of the conclusion essarily colored their Mount, Moreover, doubt. United States improper reason. judge’s a Serrano, supported trial dif- (1st Cir.1990); Other at finding. A have found jury ferent could at 5. Perez beyond a reasonable that Mar- doubt guilty verdict To sustain a a purpose underlying knew that the tinez charge, government must conspiracy trip pick up Puerto Rico was not conspiracy aof both the existence show real but money for a estate transaction voluntary knowing and and the defendant’s agent for knowingly act as the collection a Gomez, it. Benavente participation conspiracy. taped conversa- drug Sanchez, 380; F.2d at agents, the defendant and tion between government prove The must car, Agent the defen- Pantoja in Morales’ intent; agree the intent to and types of two knowledge password indicated of the dant of to commit the substantive the intent Further, necessary money. to collect the 872 F.2d at 1079. Rivera-Santiago, fense. if he Agent Morales asked the defendant entailed. The understood what the errand defendant need not know the The responded the correct sum with defendant Sanchez, 917 conspiracy. of the extent $160,000. money, 610; Walters, F.2d at 771. All F.2d at necessary ‘the essential he Agent is “is to show Morales then stated that did that plan problems people connection with nature of not “want those over with [his] ” Sanchez, (quoting there, 917 F.2d at 610 done we cannot it.’ then until this is not (quot Rivera-Santiago, dealing indicating 872 F.2d at that this keep ...” was States, 332 U.S. ing discrete rather one Blumenthal not one transaction but 248, 256-57, 539, 557, 92 L.Ed. 154 68 S.Ct. The then indicated of several. defendant may (1947))). understanding. show the his asked Libardo When him, a direct or plan by responded such either that existence of had sent defendant Amparo, evidence. that circumstantial Valencia-Luce he himself was unsure but 512; na, Rivera-Santiago, Miami, the one 925 F.2d at connection who his generally rec directly 1079. Further F.2d. at talked with them. agreement itself be

ognized that arrested, Perez After Martinez was Sanchez, express. either tacit telephone found in small black book was 610; Rivera-Santiago, 872 F.2d at 1079. at purse. In it was written the his wife’s of Carmen” password “Lisandro on behalf examining all the evidence After telephone that Morales number light in the most against Perez Martinez to reach provided the Sierras in order him. government, drawing favorable in the for “Sole- Also book was number govern in the reasonable inferences all dad,” Agent an individual Mo- with whom favor, the conviction. uphold ment’s we had “the errand previously rales discussed he and Perez Martinez testified that his Furthermore, though Perez for Carmen.” had to Puerto Rico to collect wife traveled had he came Martinez testified that proceeds of a sale which real estate his primarily Puerto Rico to visit wife’s paid check. cashier While would a hair- family and for his to attend wife there, they planned his to visit wife’s show, styling he on cross-exami- admitted hair-styling show. relatives and attend a spent that he a few only nation minutes that he and Maritza He claimed when and there was no wife’s relatives Pantoja Agent met Morales and Candelaria actually evidence that she attended the Amador, thought meeting he he hair-styling show. “Lisandro,” named he had someone whom Despite explanation Perez told was former owner real Martinez’s for been arrest, Furthermore, leading up Morales testi the events to his we find estate. government’s men fied the Sierra never that the evidence was suffi- brothers beyond prove reasonable tioned Perez Martinez name and cient doubt any participated the defendant the con- regarding did not have information import spiracy Perez He knew the whether the Sierra knew cocaine. brothers purposes. for password Martinez. identification He (1983), only supposed to “unreasonable and arbi he was the amount that knew trary expeditiousness in upon indicates that he insistence The evidence collect. conspiracy, delay” in- justifiable request face con knew about others in Miami who dealt with cluding a woman stitutes an of discretion. United abuse Torres, expressed 436, (1st He conspiracy. others States v. Cir.), to understanding denied, 889, Morales referred when 479 U.S. 107 S.Ct. cert. dealings. Though 287, (1986). he testified that other 93 L.Ed.2d 262 Factors that estate picking up a check for a real deciding he was be whether the relevant transaction, to receive surprised he was not trial court its discretion include: abused telephone had the “(1) instead. His wife prepa cash the amount of time available for conspir- the of other members of ration, (2) numbers prejudice for the the likelihood of uphold to acy. denial, (3) find sufficient evidence We the defendant’s role in shorten Perez Martinez’s conviction. ing time, (4) preparation effective the de (5) gree complexity of of the case and the a Continuance

B. to Grant availability discovery prosecu from Refusal the Lussier, 929 F.2d tion.” United States v. claims that next Perez Martinez (1st Cir.1991) (citations omitted). 25, 28 erroneously denied a con district court 15, afternoon, June Friday tinuance. On The trial court did not commit an abuse that he had defendant testified denying of discretion the continuance. Inn Hotel near mid at the Dutch arrived pos- had Defendant Perez Martinez been 5, 1989. On cross- night on November months. Dur- session of the document six examination, registration he was shown ing period ample that he had time to obtain that he hotel which indicated card from the of the prove the malfunction witnesses p.m. Perez Mar there at 5:42 had arrived Furthermore, time clock at the hotel. incorrect that the card was tinez stated denied the contin- though the district court day in Miami he had worked that because uance, shortly adjourned for the weekend it Puerto Rico. p.m. flying before until 7:00 Defendant Perez Mar- after the denial. Friday until had from that afternoon tinez testified, request- the defendant After he morning a witness to Monday to obtain in order to obtain recess ed a one-hour Martinez the clock. Perez testify about testify Inn Hotel to from the Dutch witness of the prejudiced by the denial was not registration on the the time indicated continuance, no error. and we find time of reflect the actual card did not clock was not the time check-in because for

functioning properly. Counsel Exclusion Evidentiary C. The the district court government informed Monday morning, counsel On possession had that the defendant been Pantoja offered into evidence co-defendant prior months the document for six Telephone Puerto Rico two documents: recess, noting denied the trial. The court letter from the Company receipt and a early recess the there had been receipt The offered Inn Hotel. Dutch pre- defense to day to enable the previous 5, 1989, Pantoja that on November to show pare. Rico from Mia her Puerto called brother mi; to show that the letter was offered court’s dis the trial It is within functioning had not been hotel time clock impose time limits on reasonable cretion The in November of 1989. properly Borges v. presentation of evidence. objected to the admission government Corp., 935 F.2d Lady Sea Our continuances, ground documents on the Cir.1991). these (1st matters of On recip complied granted defendant had must trial discretion “broad of Federal discovery requirement rocal Slappy, 461 U.S. ...” Morris courts 16(b)(1)(A).10 Procedure 1610, 1616, of Criminal 75 L.Ed.2d 610 Rule 11, 103 S.Ct. uments, possession, within the 16(b)(1)(A) provides: which are ... "[T]he 10. Fed.R.Crim.P. (Em- defendant____” custody in- or control permit shall defendant added). phasis photograph papers, spect copy ... doc- not shown that the evi- defendant has court, finding that the defendant been admissi- have dence would otherwise over evidence duty to turn its violated telephone record to have been For the un- ble. the evidence excluded government, it would had to have been have admissible of Criminal Procedure Rule der Federal of Evi- under Federal Rule authenticated these 16(d)(2).11 refused to allow The court admissible as so that would be evidence, dence 901 noting that into documents activity regularly conducted of a a record produced this evidence have could defense 803(6). Rule Federal of Evidence under its account events to buttress earlier Lipson, Belber government See 5 and that the of November Cir.1990)(authentication requires custo- investigate the required to not be should witness). qualified or other of records dian at such a authenticity of the documents produce any did not witness The defendant stage. late telephone company to authenti- from dis the trial court’s It is within kept record as one in the telephone cate the non-compli exclude evidence for cretion to of business. regular course 16(b)(1)(A). v. United States See ance with letter, hearsay with- it was not As to the (1st Cir.) 386, 402 534 F.2d Hathaway, exception under Federal Rule any in handling in the has discretion (“[t]he court properly 802. Both records were Evidence orders”), discovery alleged noncompliance with under the rules of evidence.12 excluded 819, denied, 97 429 U.S. S.Ct. rt. ce denied, (1976), cert. 64, L.Ed.2d 79 50 Sentencing C. States, 429 Baptista v. United sub nom. dis- (1976). claims that the 819, 64, Lastly, 79 the defendant 50 L.Ed.2d 97 S.Ct. U.S. sentencing him. The Caudill, 915 trict court erred v. also United States See Perez Martinez a Cir.1990); 294, (7th district court awarded 299 United States F.2d (2d Cir.1990). adjustment to his of- 18, Sanchez, 21 two-level downward 912 F.2d v. level, finding on its under only based be reviewed fense exclusions will Such Perez was a 3B1.2 that Hathaway, 534 U.S.S.G. section of discretion. an abuse 299; conspiracy. Per- Caudill, in the 402; participant F.2d at “minor” 915 at F.2d insists, however, Moreover, Martinez, Sanchez, even ez 912 F.2d at 299. point reduction his to a four its discretion entitled trial court abused his “minimal” evidence, it is not reversible offense level because excluding base such drug offense. prejudice to the defendant. role error absent 402; at see also Cau Hathaway, 534 F.2d guidelines appeals, we review 299; Sanchez, at dill, 912 F.2d 915 F.2d at application of role-in- district court’s Turner, 21; “clearly adjustments under a the-offense denied, Cir.), 1574, (11th 493 1580 cert. United States v. erroneous” standard. 997, 552, 107 L.Ed.2d 548 110 S.Ct. U.S. Cir.1991); (1st Osorio, F.2d (1989). 514; Valencia-Lucena, 925 F.2d at F.2d case, Wright, the defendant States present In the Cir.1989). rea “And more than one if the where prejudice. Even has not shown such drawn from un may inference improperly excluded under sonable records were facts, 16(d)(2) the court’s choice from disputed Procedure Rule of Criminal Federal government. 16(d)(2) any provides: to trial and to turn over "If at Fed.R.Crim.P. 11. however, 16(c) proceedings Reading suggests, during it is time brought the course Fed.R.Crim.P. party of the court that only notify govern- to the attention that a defendant need rule, comply court with this has failed to posses- it enters his ment of new evidence once introducing prohibit party from ... so, Having did so here. done sion. Defendant evidence not obligation provide the defendant meets disclosed____" discovery, reciprocal is therefore not de- Possibly improperly exclud- the district court Nevertheless, serving of sanction. since the evi- Fed.R.Crim.P. the two documents under ed properly excluded under the Rules of dence was Evidence, 16(d)(2). read Fed.R.Crim.P. The district court impropriety in the exclusion un- 16(b)(1)(A) requiring a defendant to collect as 16(d)(2) Fed.R.Crim.P. is moot. trial, der prior at all the evidence he intends to use quite among supportable alternatives cannot be act is unlike those of the “minimal” clearly participant v. Rosa erroneous.” United States envisioned Guidelines. comment, do-Sierra, (1st Cir.1991)(per 3B1.2, 2) (n. U.S.S.G. See § curiam) (citing (downward adjustment States v. Trinidad partici- for minimal Rosa, (1st Cir.1990)). pant applies, example, De La “for ... a case [to] where an individual was recruited as a We find no error the court’s single smuggling courier for a transaction Perez Martinez was a determination that (em- involving a of drugs”) small amount partici rather “minor” than a “minimal” added). phasis Twenty-six clearly kilos is pant in the de conspiracy. two-level drugs the small amount of contem- participation applies crease for minor plated guidelines. present In the “any participant culpable is less than who case, properly applied the district court role participants, most other but whose sentencing guidelines. We affirm Perez minimal,” not be could described Martinez’ sentence. comment, (n. 3B1.2, 3), whereas U.S.S.G. § used decrease “infrequently” four-level Summary applies plainly to “defendants who are affirm the We conviction Fabio Rodri- culpable the least among those involved guez the Cortes. We affirm conviction and group.” in the conduct of a U.S.S.G. comment, of Rafael Perez We 2). sentence Martinez. 3B1.2, (nn. 1, “Minimal” § Ocampo vacate the conviction of Eduardo by de participation may be indicated “the for Hoyos and remand his case a new trial. knowledge lack or under fendant’s of standing scope of structure of WOLF, Judge (concurring District enterprise and of the activities of oth- dubitante). ers____” Id. case, in judgment I concur sentencing hearing, At the the district including the order decision to a new trial court observed: Ocampo Hoyos. for the defendant Eduardo nor supplier, The Defendant was not a generally I in the thor- also concur court’s directly of the involved distribution however, I ough opinion. separately, write cocaineQ Apparently, assumed a point relating to amplify one the admis- monetary gains risk in order to achieve Ocampo Hoyos’ of Colombian identifi- sion supportive role and his in nature. respectfully card and to differ con- cation money on the of Based amount involved prosecu- of cerning the characterization collect, purity he was that of argument closing concerning the card. tor’s cocaine, it is cocaine the amount judgment De- Court that the judge agree I that the district abused Perez there- fendant Rafael Martinez be Ocampo admitting Hoyos’ Co- discretion custody Bu- committed to identification card under Federal lombian reau of for a term of Prisons I Rule of Evidence 403. believe that months. Ocampo Hoyos’ card was relevant because prove possession might of it tend to he and This assessment of Perez Martinez’ role “friends,” Sierra as Libardo Libardo were is supported the offense the record. card, claimed. Possession of the Sierra argues Perez Martinez that he should however, little, any, probative value lenient than have received more sentence concerning Ocampo Hoyos whether knew a “mi- Pantoja, who was also classified as the criminal nature of the “errand” he was participant” sentencing purposes. nor for running for his friend—an issue critical merely The defendant claims that he Ocampo proving Hoyos knowing traveling companion Pantoja, served as co-conspirator, mere willful rather than a culpable. more We ar- who was find this messenger. clearly gument jury without merit. attempted agree colleagues that defendant I with the dis- my believed that giving first payment primary collect the installment on trict court’s reason twenty-six delivery significant weight kilo of cocaine. This identification card balancing process imper- Rule 403 was an case is closer to the admission Jamaican The district missible reason. court found passports which was affirmed in United willing “a more Blackwood, 139, 143(4th Colombianwould be States v. anybody trust another Colombian than else Cir.1990). analysis relies on an ethnic ...” This My prosecutor’s closing view the ar- stereotype involving propensi- an assumed gument disposition does not affect the ty drug to commit crimes based on national Ocampo Hoyos’ appeal. my I have stated origin. view, however, profes- because it be of colleagues agree my I also personal importance pros- sional and impermissi giving significant weight to an case, similarly ecutor in this to others balancing process

ble factor the Rule situated. constitutes an abuse discretion. See Hastings, denied, (1st Cir.), 488 U.S. cert. (1988) (a 102 L.Ed.2d 327 S.Ct. his or her discretion if judge trial abuses weight given

significant to an irrelevant consideration); improper see also Inde

pendent Chemical v. Proc Oil & Workers Co., Manufacturing ter & Gamble STATES, Appellee, UNITED (1st Cir.1988)(same). Final where, here,

ly, agree I the errone MANTECON-ZAYAS, Nelson ruling ous does not constitute “harmless Defendant, Appellant. error,” required. a new trial is No. 91-2110. opinion regarding Ocampo Hoyos If the analysis, I ended with this would not write Appeals, United States Court of However, separately. opinion goes First Circuit. “misconduct,” to indicate that while not prosecutor’s closing argument concerning Nov. type “ap-

the identification card was the

peal jury to find guilty to the the defendant origin” of his national reason which was Doe,

condemned United States v. (D.C.Cir.1990).

F.2d 16 I do not concur in closing argu-

this characterization of the

ment. Doe, that, the court held “The line of argu-

demarcation crossed ... when the emphasis

ment shifts its from evidence to case,

emotion.” Id. at 25. In the instant prosecutor bring did jury’s improper

attention the district court’s rea- admitting

soning in the identification card. prosecutor

Nor did the make an emotional

appeal Ocampo Hoyos’ on the based Colom- Rather, connection.

bian addressed the argued single,

evidence and appropriate inference, stating: young

factual “This Colombia,

man has ties with from there

you reasonably why can infer Libardo Sier- calling Thus, him

ra was his friend.” I do argument improper

not believe the un- Rather, reasoning

der the of Doe.

Case Details

Case Name: United States v. Fabio Rodriguez Cortes, United States v. Eduardo Ocampo-Hoyos, United States v. Rafael Perez Martinez

Court Name: Court of Appeals for the First Circuit

Date Published: Nov 21, 1991

Citation: 949 F.2d 532

Docket Number: 90-1921, 91-1055, 90-1977 and 90-1978

Court Abbreviation: 1st Cir.