*3 counts should be treated substantive KEARSE, Circuit Before OAKES included offenses and set aside lesser POLLACK, District Judges, and Senior merged as to sentence in the merely not Judge.* § sentence under U.S.C. POLLACK, District MILTON Senior supple- agree with Osorio that the We
Judge. aiding abetting mental instruction prejudicial, and set Estrada was erroneous and Defendant Fernando Osorio 5, 7, 8, the convictions on Counts (“Osorio”) appeals judgments of con- aside from agree the sen- after a trial and 10. We also entered on verdicts viction Dis- tences on 2 and 6 should be vacat- the Eastern in the District Court for ed; however, thereon are convicted the convictions was trict of New York. Osorio joined and com- continuing criminal enter- affirmed and should be engaging in a York, Pollack, sitting designation. Judge District New Senior *The Hon. Milton the Southern District Court for bined conviction Count fice make The theory with them. of the evi- sentence on which is also affirmed. dence it reflected consciousness of i.e., guilt: that Osorio altered the dates in
Background order to conceal his whereabouts at times large illegal This case involved a scale narcotics when transactions were discussed or importation scheme for the and distribution place. took Osorio in Septem- cocaine. was arrested prosecutor permitted to circu- 1983, along ber with Ana Isabel Goez De- passport late the jury, to the with the Both nar- Granobles. with Court’s instruction that “The purpose is to conspiracy, possession cotics with of co- superimposed see the blue ink over red distribute, caine with intent to and with stamp.” In jury’s presence, prose- January thereof. In cutor then asked stipu- defense counsel to pleaded guilty DeGranobles he late that did make the marks him- *4 (Count 10). charge possession of self. Defense any part counsel denied Osorio, At the trial of the Government changes objected the strongly being
presented
principally through
its case
the
any
asked to make
pres-
statement in the
testimony
co-conspirators.
of four
It also
the jury.
interjected:
ence of
The Court
ledger kept by
relied on a
Osorio with
“Let the record reflect
defense coun-
[that
transactions,
details of numerous
and on
states that he did not do it
the
sel]
[make
proof
fingerprints
that Osorio’s
were found
stipulation
A similar
was re-
alterations].”
paper
wrapped
portion
the
of
quested in
presence
the
of
jury
the
con-
cocaine. Osorio testified on his own behalf
the
cerning
interpreter
again
there was
any
of,
knowledge
participa-
and denied
or
elicited a
by
denial
counsel of any altera-
conspiracy, drug dealing,
tion
narcotics
the
by
interpreter.
aiding
or
abetting
thereof. He main-
examination,
cross
firmly
Osorio
de-
ledger
the
legitimate
tained that
reflected
altering
passport
nied
his
and freely admit-
transactions,
business
and that he touched
ted that he was in
United
States on the
paper
presence
po-
wrapping
of
original,
by
dates
indicated
unaltered
lice
after he was arrested.
evi-
The
entry stamps.
red
establishing
guilt
dence
am-
Osorio’s
was
Supplemental
The
Instruction
ple.
7-10,
On Counts 3-5 and
Osorio was
Passport Controversy
The
charged
principal
both as a
and as an aider
passport
Osorio had
his
surrendered
of
and abettor
two individuals
were
who
Thereafter,
the time of his arrest.
named in the indictment but were not on
custody
Government maintained
of the doc-
(i.e.,
trial with Osorio
one
“Trejos”
trial,
day
ument until the first
of
it
when
3-5,
and DeGranobles in Counts
given
to Osorio to work with while
7-10).
Counts,
charge
In its main
Osorio,
making
Only
lawyer,
notes.
the trial court properly
instructed the
interpreter
and an
had access to it.
itsOn
on the elements of
lia-
Government,
prosecutor
return to the
bility;
of
the correctness
these instructions
the passport
noticed that
bore alterations.
challenged.
is not
red-stamped
relating
Two
to times
dates —
significant meetings
alleged
deals— During
deliberations,
day
second
changed
ballpoint
pen.
been
with a blue
Court,
jurors
inquir-
sent a
to the
note
ing
they
required
whether
to vote
proof
The court received
that until the
or
cul-
Osorio alone must also consider the
trial, there were no alterations of the en-
pability
the absent co-defendant. After
stamped
passport.
tries of dates
in the
A
among
colloquy
and counsel the
Court
agent
Government
testified that
while
judge
as follows:
passport
possession,
in his
not
he had
the only
made or seen the alterations and had not
To find Osorio Estrada
defend-
anyone
Attorney’s
you
in the
of-
be
as to
guilty
observed
ant
must
satisfied
apparent
creating
effect of
ror and its
beyond a reasonable
elements]
[the
not, however, in
he
of interest does
charges that
conflict
doubt.
indictment]
[The
case,
he is
in this
rise
Trejos
totality
but
of the evidence
together with
did this
not a defendant.
of a Sixth Amendment viola-
here and is
level
appellant
by
relied on
tion. The cases
to consider Tre-
obviously you have
But
holding
attorney’s “concern over
that an
piece
evi-
any other
you would
jos as
law
getting
into trouble with criminal
...
you
but
don’t have
in the case
dence
impermissi-
authorities” is an
enforcement
beyond a
Trejos’ guilt
be
satisfied
Cancilla,
conflict,
ble
he is not a de-
since
doubt
reasonable
all concern at-
F.2d
fendant.
crimes or who
torneys who have committed
defendant Fer-
only on the
Your vote is
investigation for crimes. See id.
are under
Estrada.
nando Osorio
cited therein.
at 871 and cases
out of
following colloquy then occurred
jury:
presence of
Supplemental
Instructions
Yes,
MR. SUSSMAN
Counsel]:
[Defense
say they
contends,
don’t have to be
you
quite correctly,
but when
Osorio
if
beyond a reasonable doubt
may
con
persuaded
an aider and abettor
not be
him
they
can
find
proof
find that how
that the
they don’t
unless the
establishes
victed
guilty?
underlying
was committed
some
offense
doubt.
beyond
one
a reasonable
Trejos
They can
THE COURT:
find
*5
Cir.),
38,
(2d
45-6
Perry,
v.
643 F.2d
States
the evi-
by
preponderance
guilty
a
835,
138,
denied,
70
454 U.S.
102 S.Ct.
cert.
added).
(Emphasis
dence.
(1981);
v.
L.Ed.2d 115
United States Ruf
Cir.1979).
408,
(2d
412-13
fin, 613 F.2d
Discussion
Here,
supplemental instructions errone
the
Passport Evidence'
jury could convict
ously implied that the
judge properly overruled
The trial
abetting
aiding and
if it found the
Osorio of
to and admitted the evidence
objection
the
only preponderance of
principal guilty by
linking
defendant
to the
clearly
the
immediately
The error was
the evidence.
passport during the
changes of dates in his
attention and the court
to the court’s
called
place.
tampering
the
took
period
time
when
correct it.
declined to
judge’s
a trial
decision
We would overturn
possible interpretation of the
the
Given
only
judge
if the
had
under Fed.R.Evid. 403
relating
aiding
question as
to
and
jury’s
irrationally,
arbitrarily or
see United
acted
only
the
evi-
abetting,
especially
and
since
638,
(2d
Jamil,
Cir.
707 F.2d
642
States v.
charged by
possession as
dence of Osorio’s
trial
1983),
have cautioned
and
fact we
4
had aided and
3 and was that he
omitting
relevant
judges
sparing
to be
any
Trejos, it cannot be said with
abetted
Here, the
prejudicial,
too
id.
evidence as
charge
supplemental
did
certainty that the
strong
passport
the
was
evidence
an
jury to its verdict under
not lead the
defense,
custody
in the
altered while
are also
standard. Counts 7-10
erroneous
time,
that,
least for a
it
clear
and was
the
has not
implicated since
Government
pen
and a
were simulta
passport
the
both
direct
pointed
any
to
evidence of Osorio’s
neously in
defendant’s hands.
the
(or
importation)
possession
as
to
improper
conceded
It was
—and
Perhaps
jury
when the
those Counts.
to
prosecutor
the
argument
on
be so
—for
counts,
supple-
applied
it
reached those
deny
to
in the
defense counsel
seek to force
mental instruction.
interpreter
or the
jury’s presence that he
presence of an erroneous
permit
To
part
tampering.
in the
any
had
supplemental charge does
in a
erroneous,
it
statement
particularly because
this was
automatically compel a reversal unless
inference that
strength of the
increased the
may
the defendant
have
appears that
This er-
it
passport.
had altered
Osorio
prejudiced by
been
the error.
pact
jury
on the
is neither as clearcut as in
Guillette,
States v.
743,
(2d
547 F.2d
Arroyo
unlikely
as in Rock.
nor
denied,
Cir.1976),
cert.
434 U.S.
hand,
On
question
the one
jury’s
with
(1977).
S.Ct.
L.Ed.2d
In order
respect
counts that
in part
relied
on
likely
jury,
evaluate its
effect
aiding
(whether
and abetting
they had “to
offending statement must be
read
consider” the principal) can be read as ex-
supplemental
context
charge as a
pressing
only
confusion
about what deci-
Coombe,
whole. Rock v.
694 F.2d
make,
they
sions
had to
not about the ele-
denied,
cert.
460 U.S.
ments
aiding
liability.
(1983).
103 S.Ct.
tremely unlikely jury Accordingly, that influ- we reverse the charge. an convictions on all enced erroneous For exam- of the Coombe, counts to which supplemental supra, Rock v. ple, instruc incorrect i.e., apply, 3, 4, 5, 7, 8, tion could charge preceded by prop- followed 9 instructions, and 10. jury er deliberated hearing after
for several hours the erro- circumstances, In
neous those Lesser Included Offenses statement. inferring no for we found basis Osorio contends that his sentences and improper charge. seized on the conspiracy convictions for offenses at 917. 694 F.2d should be vacated as lesser of- included fenses in continuing the conviction on the This case falls somewhere between Ar enterprise charge. criminal theAt sentenc- Jones, royo Coombe, supra, v. and Rock v. ing, Judge imposed the trial sentences supra, both of which involved a Sand part as follows: i.e., strom charge, charge “people a count “... on one the defendant will be presumed natural, are intend proba imprisoned years. for a term of 15 acts.”† ble, logical consequence of their counts and six for years two a term 15 charge The erroneous here had an effect to a Sandstrom charge similar it since proof.
lowered
burden of
im-
All
But its
terms are concurrent.
Montana,
510,
proof
Sandstrom v.
442 U.S.
S.Ct.
†ln
99
shifted to the defendant
the burden of
on
2450,
(1979),
Supreme
The sentence
offense vacated. This Court remanded the
merged into
sentence
six are
sentencing
exclusively
purposes,
for
case
count one.”
noting
conspiracy
that the conviction
that a
in this Circuit
is
law
at
unaffected.”
560 F.2d
count “remains
may
included offense
on a lesser
conviction
Mourad,
Similarly, in
va-
Court
conviction. Two
separate
a
not stand as
let
cated
the sentence but
the record
hold that when a
decisions
Second Circuit
conviction stand. 729 F.2d
conspiracy
of a
included
of a lesser
is convicted
defendant
though
at 203-04. Even
the Court allowed
is to
offense,
proper course
action
noted
separately,
the conviction
stand
it
the sen
conviction as well as
vacate the
in a footnote that:
Rosenthal, 454
v.
States
United
tence.
denied,
(2d Cir.),
cert.
1252,
406
permit
1255
F.2d
“Since the law does not
conviction
1801,
931,
135
§
Thus,
rulings
(1982),
violation of 21
to meet
this
U.S.C. 848
I believe
Circuit, Osorio’s convictions on the lesser
appropriate
it would have been
to vacate
offenses should be combined with the con
the convictions on the two lesser-included
offense,
i.e.,
greater
offenses,
on the
viction
848
on the condition that
the convic
Such
disposition
count.
takes account of
on
tions
those offenses would be reinstated
expressed
concerns
in the
two lines of
in the event
that
the conviction on the
offense,
1,
eases discussed
greater
above.
Count were ever over
affecting
turned for reasons not
the validi
method,
this
Under
convictions on the
ty of the convictions on Counts 2 and 6.
counts
lesser
become combined with that
The convictions on lesser-included offenses
compound
and
not
on the
offense
would
be
United States v. Slutsky,
vacated in
out of
This
merged
existence.
leaves the
denied,
cert.
It not clear to what is effect
precise “joinpng]” is of or “com-
bin[ing]” the convictions on Counts and 6 conviction on Count 1.” See
“with opinion, ante,
Majority
Viewing charged Counts 2 and which §§
conspiracies violation of U.S.C. (1982), respectively, as lesser-in-
cluded offenses within Count which enterprise continuing criminal