United States v. Alexander Rafael Perez, Hortencia Magaly Pulido, Joaquin Acosta-Lao, AKA Paquito, Ramon Gomez, Santiago Preval Planas, AKA Pache, Jose Luis Ortiz, AKA Louis Abreu

Citations: 30 F.3d 1407; 1994 U.S. App. LEXIS 23916Docket: 92-2820

Court: Court of Appeals for the Eleventh Circuit; September 2, 1994; Federal Appellate Court

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Defendants Alexander Rafael Perez, Hortencia Magaly Pulido, Joaquin Acosta-Lao, Ramon Gomez, Santiago Preval Planas, and Jose Luis Ortiz appeal their convictions for conspiracy and possession with intent to distribute crack cocaine. They argue the district court should have declared a mistrial after a government witness provided prejudicial testimony about an attempted bribery concerning his testimony. The case stems from a January 29, 1992, Grand Jury indictment of eleven individuals on conspiracy and possession charges, with some defendants later pleading guilty or having their charges dismissed. The trial involved evidence of the defendants' involvement in the sale and distribution of crack cocaine in Ft. Walton Beach, primarily at Chester Pruitt Park. Key witness Pedro Goitisolo, a former participant in the conspiracy, detailed operations, including cocaine deliveries and sales overseen by various defendants. Other witnesses corroborated the sales activities of the defendants, establishing their roles within the conspiracy. The court ultimately affirmed the convictions.

George testified that she, Pereira-Poso, and Sanchez traveled to Miami, where Sanchez and Pereira-Poso purchased two kilograms of powder cocaine, which they converted to crack cocaine at Pulido's residence. Pulido later returned with them to Ft. Walton. George confirmed that Sanchez, Pereira-Poso, and Planas were involved in drug sales. She also recounted an instance when Pereira-Poso contacted Acosta-Lao for crack cocaine while awaiting Sanchez's return from Miami. The involvement of local police began when Goitisolo became an informant, identifying motels and vehicles linked to Sanchez and detailing drug sales in a park, leading to police surveillance.

On December 8, 1991, Sanchez and Pereira-Poso were arrested in a vehicle identified by Goitisolo, which contained seven "cookies" of crack cocaine. Subsequent arrests of Pulido and George occurred after police searched their motel room, uncovering a Beretta semi-automatic pistol and sandwich bags typically used for packaging crack cocaine. Additional crack cocaine was found in George's vehicle and Sanchez's vehicle. On December 13, 1991, police stopped Gomez, who had left Planas's house, but no drugs were found in his vehicle. Later, a search warrant executed at Planas's house led to the discovery of seven crack cocaine "cookies" in a condo where Acosta-Lao, Ortiz, and Perez were staying.

The defendants argue that the district court erred by not declaring a mistrial after Goitisolo mentioned being offered $5,000 to avoid testifying. The Government contends this testimony stemmed from Goitisolo's confusion and asserts that the court mitigated any potential bias by instructing the jury to disregard the statement. The standard of review for a mistrial is based on the trial judge's discretion, as they are best positioned to assess the prejudice of improper testimony. An appellate court will only reverse a mistrial denial if there is clear abuse of discretion, particularly when a curative instruction has been provided unless the evidence is deemed irredeemably prejudicial.

Defense counsel extensively questioned Goitisolo about his financial compensation from the Government during cross-examination, suggesting that he might be testifying for monetary gain. In an attempt to rehabilitate Goitisolo's credibility on re-direct, the Government introduced evidence of his refusal of a $5,000 bribe from two Cuban individuals to not testify. Defense counsel objected to this evidence on multiple grounds, including hearsay and relevance, but the court found it admissible. However, the court's rationale for its admissibility was unclear, as typically direct examiners cannot bolster their witness's credibility with specific acts unless under limited circumstances, which did not apply here. The court highlighted that Goitisolo's refusal stemmed from fear for his life, questioning the evidence's ability to enhance credibility. Additionally, the evidence was deemed inherently prejudicial under Federal Rules of Evidence 403, outweighing any potential probative value. Despite the improper admission of this testimony, the court determined it would not lead to a reversal of the defendants' convictions due to corrective actions taken after the testimony, the overall strength of the evidence against the defendants, and the high standard for reviewing mistrial motions. The court excused the jury, clarified to them that the evidence was meant solely for assessing Goitisolo's credibility, and ensured that they understood it should not imply any guilt on the part of the defendants. The jury affirmed their ability to follow these instructions.

A court's direct and explicit curative instruction regarding improper testimony can mitigate the risk of undue prejudice, thus supporting a decision against declaring a mistrial. In this case, the court's instructions effectively diminished any potential harm from Goitisolo's improper testimony. The decision to uphold the trial outcome is reinforced by the strength of the Government's case, which included multiple witnesses who provided significant evidence of guilt. Key testimony came from co-indictee Patricia George, who implicated several defendants in drug-related activities, as well as from former customers Juanita Lee and Michael Hubbard, who identified defendants involved in drug sales. Additionally, police informant Clifford Bellow corroborated these accounts, having observed the defendants in Chester Pruitt Park engaged in drug transactions. Despite recognizing an error in allowing Goitisolo's testimony about a bribe, the court ruled that this did not warrant a mistrial due to the corrective measures taken and the overall strength of the evidence against the defendants, concluding that the improper testimony was not so prejudicial as to negate the trial's fairness.

Planas's house was under surveillance starting December 1, 1991. The defendants, including Planas, Acosta-Lao, Gomez, Perez, and Ortiz, are appealing various sentencing decisions made by the district court. Acosta-Lao and Gomez assert that the court improperly restricted their cross-examination of government witness Clifford Bellow. Acosta-Lao, Ortiz, and Perez claim a discrepancy existed between the single conspiracy alleged in the indictment and the trial evidence. Acosta-Lao, Gomez, and Ortiz argue that cumulative errors during the trial compromised their right to a fair trial. Additionally, Acosta-Lao and Ortiz contest the denial of their motion to suppress evidence obtained during a Terry stop involving Acosta-Lao's vehicle. Pulido argues that the trial evidence demonstrated a significant variance from the indictment and/or a constructive amendment of it, as well as challenging the court's issuance of an Allen charge to the jury. After reviewing the case, the court determined that these arguments lack merit and require no further discussion. Testimony from Goitisolo revealed that he was offered $5,000 to avoid attending the trial, which he declined out of fear for his safety. In further questioning, Goitisolo confirmed that one of the defendants was involved in the money offer. Hubbard testified to seeing Gomez in a park but did not witness him selling drugs, while Lee claimed to have previously purchased drugs from Gomez.