United States v. Ronald Berkowitz, Paul D'alessandro, Kevin Van Coughnett, Bisan Vafaie, and Wendall Howell

Citations: 662 F.2d 1127; 9 Fed. R. Serv. 864; 1981 U.S. App. LEXIS 15433Docket: 80-5537

Court: Court of Appeals for the Fifth Circuit; December 7, 1981; Federal Appellate Court

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Five defendants, Ronald Berkowitz, Paul D'Alessandro, Kevin Van Coughnett, Bisan Vafaie, and Wendall Howell, were convicted of conspiracy to distribute cocaine, possession with intent to distribute, and distribution of cocaine, violating federal drug laws. They appealed their convictions, raising issues regarding the denial of severance motions, limitations on cross-examination, suppression of evidence, co-defendant counsel conduct, and sentencing. The United States Court of Appeals for the Fifth Circuit reviewed these claims and ultimately upheld the district court's decisions. 

The case's background includes Vafaie's initial contact with government informant Ralph Nieves in 1979, where Vafaie provided a lead on obtaining cocaine. Subsequently, Nieves facilitated a meeting with Vafaie, Van Coughnett, and undercover agent Michael Pavlick. After planning a trip to Florida, they arrived in Ft. Lauderdale, where they were introduced to special agent William Silvestri. The group, including Van Coughnett and associate Pat Haughey, connected with Edward Korp, who led them to a cocaine supplier's apartment, where they found additional defendants and a sample of cocaine.

Special Agent Silvestri conducted a field test confirming a sample as cocaine, which was snorted by defendants present, who praised its quality. Appellant D'Alessandro stated that a kilogram of cocaine would only be produced after showing purchase money. D'Alessandro, accompanied by Anzelone, left to retrieve the cocaine, while Hovan communicated about obtaining a scale, which Howell subsequently provided. Surveillance agents followed D'Alessandro and Anzelone to Ronald Berkowitz's home, where they observed D'Alessandro returning with a package. Upon returning to the Hidden Harbor Condominium apartment, D'Alessandro claimed the package contained the kilogram of cocaine. Silvestri conducted another field test on the package's contents and confirmed it was cocaine, while Berkowitz demonstrated its quality. Silvestri then pretended to leave for purchase money but returned with other agents, identified themselves, arrested the defendants present, and seized the cocaine. Additional arrests of the remaining defendants occurred later in Fort Lauderdale. The appellants Vafaie, Van Coughnett, D'Alessandro, and Howell contended that the district court erred in denying their motions for severance, which they highlighted as a key issue on appeal.

Numerous motions for severance were filed during the trial, despite none being made pretrial, which does not undermine the appellants' claims. The district court is obligated to monitor for potential prejudice and can order severance if necessary. Although the court denied all motions for severance, the appellants did not dispute the propriety of joinder under Fed. R. Crim. P. 8(b), but argued they were prejudiced by the joint trial and sought relief under Fed. R. Crim. P. 14. The decision to grant severance lies within the district court's discretion, requiring a balance between potential prejudice to defendants and the public interest in joint trials arising from similar transactions. An appeal against a severance denial requires more than a claim of a better chance of acquittal; it necessitates proof of an unfair trial and significant prejudice that the trial court could not mitigate.

Appellants Vafaie and Van Coughnett sought separate trials due to their antagonistic defenses. Both testified at trial, presenting similar defenses while attempting to downplay their involvement in the conspiracy. They characterized themselves as mere 'knowing bystanders' and consistently agreed on certain events, including their connections to the confidential informant and the subsequent introduction related to a cocaine transaction. However, they disagreed on the extent of their involvement and the details of their conversations.

Vafaie claims to have been a passive observer in drug-related transactions, distracted by personal activities, while alleging that Van Coughnett was actively involved. Van Coughnett argues that his role was minor and at Vafaie's request, suggesting that Vafaie was primarily responsible. Both defendants provided conflicting accounts of their involvement: Van Coughnett testified that Vafaie needed money to repay a $6,000 debt and conceived the drug sale idea after reading an article. He stated that he helped introduce Vafaie's friend, Nieves, to his friend Haughey as a favor, without expecting compensation, while hinting that Vafaie would benefit from the sale. In contrast, Vafaie denied initiating the drug sale and claimed that his mention of debt was a pretext to decline a loan from Van Coughnett. He asserted that his only contribution was providing his phone number to Nieves for a favor. 

The defenses of Vafaie and Van Coughnett were found to be somewhat antagonistic, but mere antagonism does not warrant severance of their trials. For severance to be necessary, the defenses must be mutually exclusive or irreconcilable, as established in previous rulings. The courts assess whether each defendant serves as the best witness against the other, whether they face hostile witnesses from co-defendants, and if cross-examinations are adversarial. The criteria for determining irreconcilability extend beyond just the presence of hostile witnesses.

Severance of co-defendants in a trial is not mandated simply due to mutually exclusive defenses. In *United States v. Bynum*, the court ruled that the defense of one defendant did not rely on the other being guilty, indicating that conflicting factual details alone do not necessitate severance. In *United States v. Sheikh*, although the defendants' claims regarding ownership of a heroin concealment were antagonistic, the core defenses were not irreconcilable, and thus, severance was not required. The critical test for severance is whether a defendant's defense necessitates disbelieving the co-defendant's testimony. If the essence of one defense contradicts the other, compelling prejudice may arise, warranting severance. However, if conflicts are minor and peripheral, they do not mandate severance. In the case at hand, the core defenses of noninvolvement were consistent, and the jury could rationally accept either or both defenses without requiring one to disbelieve the other. The district court acted within its discretion, ensuring protections against undue prejudice and managing the trial proceedings to maintain fairness.

The joint trial of defendants Vafaie and Van Coughnett did not compromise the fairness of the trials for appellants D'Alessandro and Howell. They argued that 'spill-over' prejudice from the conflict between Vafaie and Van Coughnett, along with the joint trial of seven defendants, led to jury confusion that denied them a fair trial. This claim was found unsubstantiated, as there was no evidence of jury confusion. The trial court instructed the jury to consider the evidence against each defendant separately, and the jury's refusal to convict a marginally involved defendant supported the conclusion that they carefully examined the evidence. Even if some confusion existed, it likely benefitted D'Alessandro and Howell due to the strong evidence against them. Howell's argument regarding potential confusion from the similarity of names among defendants was also dismissed, as the trial judge took steps to mitigate any confusion. 

Additionally, D'Alessandro and Howell contended that comments made during summation by co-defendant Van Coughnett’s counsel and the prosecutor infringed upon their right to remain silent, warranting severance. However, the established legal precedent requires that such comments must significantly impair the integrity of the Fifth Amendment right to remain silent for a conviction to be overturned.

Not all statements that might suggest a defendant's choice not to testify are considered comments on silence. The determination hinges on whether the statement was clearly intended or could be reasonably interpreted by a jury as a remark on the defendant's silence. In the case of appellants D'Alessandro and Howell, they argued that co-defendant Van Coughnett's closing remarks about his decision to testify constituted such a comment. However, the court found that the statement was likely an attempt to elicit sympathy for Van Coughnett, enhancing his credibility rather than commenting adversely on D'Alessandro's or Howell's silence. The court emphasized that a positive comment regarding one co-defendant's testimony does not carry the same prejudicial weight as a negative comment on another's failure to testify. Furthermore, any potential prejudice was mitigated by the district court's immediate curative instruction that defendants have the right not to testify without adverse inference.

Howell also contended that the government's summation comments impliedly referenced his silence by focusing on the weight of testimony versus reports from Drug Enforcement Administration agents. The court sustained an objection to this characterization, affirming that the prosecutor's intent was to counter defense claims about the agents' credibility, not to comment on Howell's silence. 

Additionally, D'Alessandro objected to a question regarding the guilty pleas of absent co-defendants, arguing it prejudiced his trial. This inquiry followed a sidebar discussion about whether the jury should be informed of those pleas, indicating a potential procedural concern regarding the information provided to the jury.

The court instructed the jury not to speculate on the absence of certain individuals mentioned in testimony. Following a question from Berkowitz's counsel, the prosecutor objected, leading D'Alessandro to seek a mistrial or severance, which the court denied. The judge upheld the objection and directed the jury to disregard the question, rejecting a proposed curative instruction from the prosecutor, which D'Alessandro opposed. The court concluded that the question did not compromise D'Alessandro's right to a fair trial, as it was unanswered and the jury received clear instructions to ignore it. This case differs from prior cases where juries were informed of a co-defendant's guilty plea, emphasizing that the court protected against potential prejudice. Granting a new trial under these circumstances could encourage defendants to manufacture mistrials, which the court refused to endorse.

Appellants Howell, D'Alessandro, and Van Coughnett argued that their Sixth Amendment rights were violated when the court limited their cross-examination of special agent Silvestri. They sought to challenge Silvestri's identification of a scale used in evidence, claiming it was seized from Berkowitz's home rather than the scene of the crime. The government objected based on Berkowitz's lack of a chance to contest the search's legality and potential Fourth Amendment violations. The court affirmed the objection, noting that while significant restrictions on cross-examination could violate Sixth Amendment rights, the district court has discretion over the scope of further questioning once sufficient cross-examination has been provided. The sufficiency of cross-examination is assessed qualitatively, focusing on the defendant's ability to present facts that allow jurors to evaluate the witness's reliability.

The district court upheld the government's objection to certain lines of questioning during cross-examination to protect the identity of a witness, Berkowitz, and the legality of the evidence obtained. The court allowed appellants to explore the existence of another scale and misidentification by agent Silvestri, as long as they did not disclose Berkowitz's name or the details of the seizure. Appellant D'Alessandro successfully cross-examined Silvestri about the scale without further objection, and also questioned another agent about discrepancies in testimony regarding the scale. The court's limitations were deemed appropriate to avoid prejudice to Berkowitz, as revealing such information had minimal probative value. The district court's actions were consistent with precedent, demonstrating its obligation to protect witnesses from self-incrimination and harassment. Additionally, appellant Howell's challenge regarding the sufficiency of evidence was rejected, as the record contained ample evidence to support his convictions.

Defendant Howell argues that the seizure of cocaine from the Hidden Harbor Condominium should be suppressed due to a failure of DEA agent Silvestri to announce his presence as required by 18 U.S.C.A. Sec. 3109. The court finds this argument lacks merit, noting that the circumstances surrounding the seizure mirror those in prior cases, such as United States v. Dohm, and therefore do not warrant further discussion. 

Berkowitz, another appellant, does not contest his conviction but claims his dual sentencing for possession and distribution from a single transaction is improper, citing the precedent set in United States v. Hernandez. However, the court rejects this argument for two reasons: first, Berkowitz's conspiracy conviction implicates him in all substantive offenses committed by co-conspirators under the Pinkerton rule; second, even if he did not possess the cocaine independently, D'Alessandro, a co-conspirator, possessed it prior to distribution, thus establishing separate transactions that justify distinct sentences for possession and distribution. The decision in Hernandez does not protect Berkowitz from this dual sentencing under the facts of his case.

Hernandez was convicted of possession with intent to distribute and distribution of heroin based on his constructive possession at the time of distribution, despite not being present during the actual distribution. The en banc court remanded for resentencing, noting that consecutive sentences for possession with intent to distribute and distribution constituted double punishment for conduct that merged into a single offense. The court emphasized that the evidence of the sale supported both the constructive possession and intent to distribute, and no separate evidence of possession existed apart from the actual sale. 

In contrast, in United States v. Foundas, the appellant arranged a sale of cocaine and actively produced it, resulting in separate convictions for possession with intent to distribute and distribution. The court distinguished Foundas from Hernandez, as Foundas's possession was independent from the act of distribution. In the current case involving Berkowitz, there was independent evidence of prior possession of cocaine, allowing for separate sentencing for possession with intent to distribute and distribution, aligning more closely with Foundas than Hernandez. The district court's judgment was affirmed, with no errors found in the proceedings.

The court has the authority to order separate trials or provide other relief to address conflicts in defense strategies among co-defendants in an indictment. In this case, both Vafaie and Van Coughnett claim they did not intend to profit from a transaction, suggesting the other expected to benefit. Vafaie's acknowledgment that a confidential informant offered to pay for his trip and Van Coughnett's assertion that Vafaie covered part of his travel expenses complicate their defenses but do not fundamentally change the nature of their claims regarding criminal intent. The disagreement over who profited from the transaction centers on the extent of benefits received rather than a complete denial of involvement.

D'Alessandro argues he was prejudiced by the joint trial by comparing transcript pages devoted to the government's case against him versus co-defendants. However, such quantitative analysis does not establish compelling prejudice necessary for severance. The court found D'Alessandro's role central and the evidence against him overwhelming, undermining his claim. Although both D'Alessandro and Howell raised concerns on appeal regarding the trial's fairness, only Howell formally requested a severance, and the court ruled that denying this motion was not erroneous. The court did not express an opinion on whether severance might be required in cases where a co-defendant's guilty plea is revealed to jurors.

The government acted appropriately to prevent potential prejudice against Berkowitz by objecting before specific details about him were mentioned. Objections to D'Alessandro's questioning were sustained on hearsay grounds. Appellants claimed the trial court's ruling limited their examination scope, but the judge's response indicated that their opportunity to cross-examine was not broadly restricted. The court noted that if there was any uncertainty about the ruling's scope, the appellants should have sought clarification, which they failed to do.

Appellants had the opportunity to cross-examine special agent Silvestri, and their failure to fully utilize this opportunity does not constitute a violation of constitutional rights. Prior to distributing heroin, Hernandez and an accomplice inspected a one-gram sample with undercover agents, after which the accomplice delivered an ounce of heroin, forming the basis of Hernandez's convictions for distribution and possession. The court's reliance on the sale evidence to establish Hernandez's constructive possession and intent to distribute was noted, emphasizing that there was no evidence for possession with intent other than the sale itself. The convictions in Hernandez were linked solely to the same act of sale, distinguishing it from cases like United States v. Foundas, which involved larger drug quantities providing clearer evidence of intent to distribute. Berkowitz argued for a distinction due to constructive possession being the sole charge against him, but the court found this distinction irrelevant, lacking supporting case law. Additionally, Berkowitz's challenge regarding the imposition of a special parole term was rendered moot when the district court vacated that portion of his sentence prior to oral argument, citing precedent from Bifulco v. United States.