United States v. Esperanza Saa, Gabriel Saa, Martha Vega, Luis Andrade
Docket: 936
Court: Court of Appeals for the Second Circuit; September 20, 1988; Federal Appellate Court
Esperanza Saa, Gabriel Saa, Martha Vega, and Luis Andrade appealed their convictions for conspiracy to distribute and possess cocaine, violating 21 U.S.C. Sec. 846. The convictions followed a jury trial in the Southern District of New York, presided over by Judge John M. Walker. The defendants argued that the trial court improperly excluded their alibi witnesses, failed to disclose an informant's identity, and permitted the government to suggest that the defendants' failure to call the informant implied guilt. While the appellate court acknowledged errors in these decisions, it determined that they were harmless, leading to the affirmation of the defendants' convictions.
The government's case revealed that in March 1987, a confidential informant, referred to as "Robert," arranged to buy large quantities of cocaine. Eli Tollinchi, associated with Robert, attempted to facilitate the purchase. On April 24, 1987, Tollinchi was instructed by co-defendant Luis Barona to meet at a vacant building in Manhattan. When the meeting occurred, Tollinchi delayed the transaction due to a lack of communication with Robert's partner. Barona warned Tollinchi about the dangerous individuals associated with the cocaine, pointing out an orange Chevrolet Nova with a man and woman inside. Gabriel Saa, introduced as the building's superintendent, later arrived and agreed to hold the drugs until the following Monday.
On April 27, Tollinchi met with Gabriel Saa and subsequently picked up Robert. They returned to the building, where Gabriel Saa identified the occupants of the Nova as the cocaine's owners. Inside the building, Gabriel Saa produced two packages of cocaine, which Robert tested before leaving to return later. Tollinchi and Barona then waited in the Saa family apartment, where they encountered Esperanza Saa.
Tollinchi communicated with Robert, who was unable to contact his partner, preventing a deal from occurring. Subsequently, Tollinchi and Barona were taken to a vacant doctor's office. There, Gabriel Saa informed them that the cocaine had been removed. Outside, Tollinchi recognized defendants Luis Andrade and Martha Vega, noting Vega concealing a package in her coat. Gabriel Saa instructed Tollinchi to turn away to avoid being seen.
The following afternoon, Robert arrived at a specified location with two undercover officers. Gabriel Saa left to retrieve the cocaine from Queens, where he met Andrade while Vega stayed in the car. After this, Andrade and Vega drove to a residence before heading back to Manhattan.
Esperanza Saa received calls indicating difficulties in coordinating the cocaine transfer. After Gabriel Saa returned, Esperanza and Barona left to pick up the cocaine. Later, Andrade and Vega arrived at the location, where Esperanza announced the cocaine's presence upstairs. After it could not be found initially, packages were produced, which the undercover agents tested. Esperanza provided a knife for this purpose, although another witness stated she was absent at the time.
The undercover agents requested to take the cocaine outside for testing, but when Gabriel Saa refused, they left. All defendants, along with Barona and Tollinchi, were subsequently arrested, with Andrade and Vega apprehended in the orange Nova after an evasive drive.
Gabriel and Esperanza Saa rested their case without witnesses. Andrade's father testified about his residency but was barred from discussing his son's whereabouts during the alleged crime. Andrade and Vega called Barona, who claimed he did not see them at the relevant times and asserted that no transaction had occurred. Robert did not testify, and his identity remained undisclosed. Tollinchi pleaded guilty to conspiracy, cooperating with the government and testifying against the defendants.
On June 9, 1987, the U.S. Attorney's Office sent a letter to the defendants' counsel requesting reciprocal discovery and written notice of any alibi or mental disease defenses, but did not specify the time, date, or place of the alleged offense. On July 5, 1987, just two days before trial, the Government provided interview notes that included references to times and places related to a narcotics transaction but lacked specific dates. On July 12, Andrade's attorney notified the prosecution of intended alibi witnesses who would testify that Andrade and Vega were at Andrade's father's house on April 27, contradicting Government witness Tollinchi's testimony. Judge Walker ruled to exclude the alibi witnesses, citing the defendants' failure to provide timely notice, which he deemed prejudicial to the Government.
He determined that the June 9 letter and interview notes met the requirements of Federal Rule of Criminal Procedure (Fed.R.Crim.P.) 12.1(a). However, the June 9 letter did not trigger the notice requirements because it failed to specify the time, date, and place of the alleged offense. The combination of the letter and notes also did not satisfy the rule, as no specific dates were provided. The Government had only given the interview notes one week before the defense notified them of the alibi witnesses, which did not allow the defendants sufficient time to comply with any proper demand for notice. Therefore, the defendants were not in violation of Rule 12.1(a). The Government's argument, presented during oral argument, that the interview notes and indictment met the requirements of the rule was not considered. The Advisory Committee Note to Rule 12.1 emphasizes that the defendant has the initial burden to raise an alibi defense but is not required to provide details until the Government specifies the particulars of the alleged offense.
The Advisory Committee Note initially proposed that the defendant bear the burden of raising an alibi defense, but Congress amended Rule 12.1 to place this burden on the Government. Under the revised Rule, a defendant is not required to disclose an alibi defense unless the Government requests specifics about the alleged offense in writing. The District Court erred in excluding testimony from two alibi witnesses based on non-compliance with Rule 12.1, violating Andrade and Vega's Sixth Amendment right to compulsory process.
In a separate instance, during trial, defendants Andrade and Saa requested the identity of an informant, Robert. The Government indicated that Robert would not be called as a witness and expressed concerns for his safety due to his impending entry into the federal witness protection program. The district judge denied the request for disclosure, stating the defendants did not demonstrate that it was essential for their defense. The Supreme Court's decision in Roviaro v. United States establishes that the identity of an informant must be disclosed if it is relevant and helpful to the defense or essential for a fair trial. The necessity for disclosure should be evaluated based on the specifics of each case, including the crime, potential defenses, and the significance of the informant's testimony.
A defendant may claim a right to disclosure of an informant's identity if the informant is a key witness or participant in the crime, with their testimony being significant for determining guilt or innocence. In *Roberts*, the informant was deemed crucial because he was present during significant narcotics transactions, and thus, his whereabouts should have been disclosed if requested. However, disclosure is not mandated unless the informant's testimony is material to the defense, as reinforced in *Valenzuela-Bernal* and *Jimenez*. In *Jimenez*, despite the informant's dual role as participant and witness, the refusal to disclose his identity was upheld because the defendant did not demonstrate that the informant's testimony had any marginal value.
Robert, a key government agent in the case, was present during critical events related to the defendants' convictions, paralleling the informant in *Roberts*. However, other defendants, apart from Esperanza Saa, failed to show that Robert's testimony was material to their defense, leading to no error in the refusal to order disclosure. His potential testimony would likely only challenge the credibility of a government witness, which is insufficient to override the informant's privilege. Esperanza Saa argued for disclosure based on contradictory testimony regarding her presence during critical events on April 28, where one undercover officer testified she was present while another stated she was not. The first officer's detailed account served as strong evidence of her involvement in the conspiracy.
Had Robert testified similarly to Marquez, asserting that Esperanza Saa was not present in the apartment after the cocaine's arrival and did not facilitate its introduction or testing, this would have been crucial for her defense. Although Esperanza cannot prove that Robert would have provided this testimony, she can indicate potential relevant events that Robert could testify about regarding the charged crime. The Government contends that its offer to make Robert available for testimony negates any error in not disclosing his identity. While this offer alleviated the need for a subpoena, it did not enable Esperanza to interview Robert beforehand to gauge his potential testimony. The Supreme Court's ruling in Roviaro emphasizes that the defense should determine whether to call an informant as a witness or interview them, not the Government. Merely being physically available does not equate to actual availability for the defense, particularly with a witness closely tied to the Government. The right to information about an informant extends beyond trial testimony; it includes the opportunity for pretrial interviews, which justifies disclosing an informant's whereabouts. Although the Government indicated Robert's reluctance to be interviewed and suggested potential danger if his identity were disclosed, the court should have allowed defense counsel to ask Robert directly. A compromise, such as an in-camera meeting with the defense counsel, could have balanced the informant's safety with the defendants' rights. Ultimately, the court's failure to disclose Robert's identity constituted an error concerning Esperanza Saa's defense. Additionally, during jury instructions, a debate arose regarding the request for a "missing witness" charge related to Robert, who was under Government control, highlighting the complexities surrounding the availability of witnesses in the case.
Defense counsel objected to the use of an "uncalled witness" charge instead of a "missing witness" charge regarding the testimony of Robert, without submitting specific language for their proposed instruction. Judge Walker denied the missing witness charge, opting for the Government's standard instruction, which allowed jurors to infer that the absence of a witness could indicate unfavorable testimony for either side. Judge Walker clarified that neither party was obligated to call a witness whose testimony would be merely cumulative. The defense reiterated their objection after the charge. During closing arguments, defense counsel highlighted the Government's failure to call Robert, to which the Assistant United States Attorney responded by emphasizing the defendants' ability to subpoena the confidential informant, implying that their absence could reflect poorly on the defense. The defendants moved for a mistrial based on the prosecutor's comments, but the motion was denied.
The case of United States v. Torres, 845 F.2d 1165 (2d Cir. 1988), was cited as precedent, where a similar request for a missing witness instruction was denied. In Torres, the court noted that the availability of a witness depends on various factors, not just physical accessibility. Despite acknowledging potential errors in the district court's assessment of the informant's availability, the Torres court concluded that the failure to give a missing witness instruction was not reversible error, emphasizing judicial discretion in such matters and the importance of the defense providing specific language for requested instructions to support an appeal.
The case at hand closely mirrors the precedent set in Torres regarding the trial judge's instructions to the jury concerning the missing witness, Robert. Judge Walker's charge allowed the jury to infer negatively against the Government for not calling Robert as a witness, similar to the instructions given in Torres. The defendants did not propose specific language for the jury charge, leading to the conclusion that Judge Walker's omission of a missing witness instruction does not constitute reversible error.
However, the court also considered whether the prosecutor's argument suggesting the jury infer guilt from the defendants' failure to call Robert was erroneous. Unlike Torres, which deemed any error harmless, the situation here is complicated by the fact that the defense lacked access to Robert’s name and address and was informed he was unwilling to be interviewed. Consequently, the defense could not ascertain Robert's potential testimony or his willingness to testify, making the risk of calling him significant and likely unacceptable. Therefore, it was inappropriate for the prosecution to argue that the defendants’ failure to call Robert indicated guilt.
In assessing potential constitutional errors during the trial, the prosecution may demonstrate that an error did not influence the verdict, thus categorizing it as harmless. This principle applies to Sixth Amendment violations related to the exclusion of alibi witnesses, aligning with previous rulings where harmless error analysis was deemed appropriate for limited violations. The case is analogous to precedents like Delaware v. Van Arsdall and Rose v. Clark, which support the notion that if a defendant had legal representation and an impartial judge, other errors are generally considered harmless.
The trial court's decision to exclude two alibi witnesses for Andrade and Vega violated their right to compulsory process; however, this error was deemed harmless. The proposed testimony indicated that Vega was in Brooklyn at 5:30 p.m. and Andrade arrived later that evening, contradicting the cooperating witness Tollinchi, who placed them at 10 East 67th Street in Manhattan between 5:00 and 6:00 p.m. Even if the alibi witnesses were credited, their testimony did not establish Andrade and Vega's absence from the crime scene or enhance the credibility of Tollinchi, who had difficulty recalling specific times.
The evidence against Andrade and Vega was substantial enough that the jury would likely have convicted them regardless of the alibi witnesses' exclusion. Testimony confirmed that Andrade and Vega were seen in their car in front of the location on April 24 and that they were implicated in the cocaine delivery on April 28. The prosecutor's comments suggesting the jury draw an adverse inference from the defense's failure to call Robert to testify did not undermine the conviction, as the defense did not clarify how Robert's testimony would have been beneficial.
Regarding Gabriel Saa, the prosecutor's rebuttal comments did not affect the strong evidence of his guilt, making any error harmless. For Esperanza Saa, the trial court's refusal to disclose the identity of a confidential informant and the adverse inference comments were similarly harmless. The evidence against her related to her actions after the drugs arrived on April 28, including whether she participated in presenting the cocaine to buyers. Although she argued she was merely a bystander fulfilling household roles, there was uncontradicted evidence suggesting a more active involvement in the conspiracy.
On April 28, following a call from Andrade or Vega indicating their location at 67th Street and Lexington Avenue, Esperanza Saa and Barona set out to locate them and retrieve cocaine. After Andrade and Vega arrived and subsequently left the building, Saa informed the awaiting buyers that the cocaine had arrived and directed them to come upstairs. Additionally, she facilitated communication while Gabriel Saa attempted to find Andrade and Vega in Queens, and she was aware of the cocaine's hiding place after Andrade and Vega departed 10 East 67th Street. This evidence of Saa's involvement in the conspiracy supported the jury's verdict, which would not have been influenced by Robert’s testimony claiming she was absent from the apartment after the cocaine's arrival. The appellate court affirmed the convictions of the appellants, having found their other arguments lacking in merit. The court clarified that applications made by any defendant were considered applicable to all, and that the district court's decision not to disclose a written statement from Robert to Government agents was not erroneous. The court noted that no legal precedent supported the appellants’ claim for a right to obtain statements from non-witness informants independent of the Government's obligations under existing legal standards. Judge Walker's assessment of the statement for Brady compliance was upheld upon independent review.
