Court: Court of Appeals for the Eighth Circuit; July 23, 1993; Federal Appellate Court
Candido Ortiz-Martinez, Gabriel Ramirez-Nazar, Carlos Fuentez, Jorge Rodriguez-Calderon, Stanley Pruitt, and Francisco Santana were convicted of drug-related offenses connected to a cocaine distribution network that operated from January 1988 to February 1990, primarily managed by Francisco Santana and John Yazbek. The network, based in New Jersey, distributed over 100 kilograms of cocaine to various buyers in St. Louis, Missouri. A multi-jurisdictional investigation initiated by the government in May 1989 involved several law enforcement agencies, including the DEA and local police.
On February 9, 1990, a grand jury indicted twenty-two individuals for their roles in the conspiracy, with many unindicted participants testifying against the defendants. The trial presented evidence from law enforcement and physical evidence such as drug seizures, currency, and surveillance records. The jury found all defendants guilty of conspiracy to distribute and possess with intent to distribute cocaine. Sentences varied, with imprisonment terms ranging from 188 to 900 months. Specifically, Santana received a 600-month sentence for conspiracy and attempted interstate travel to distribute drug proceeds, along with five years of supervised release. The appellate court affirmed the convictions and sentences of all defendants.
Santana contends that the district court improperly denied his motion for a continuance due to the illness of his attorney, Worsham Caldwell, and that this decision violated his Sixth Amendment right to effective counsel by requiring Richard Hughes, Caldwell's replacement, to complete the trial. The district court has broad discretion in granting or denying continuances, with factors such as counsel preparation time, conduct during the trial, and any recorded prejudice considered in determining if there was an abuse of discretion. Santana was represented by the Shaw law firm until November 1990, after which Caldwell, Hughes, McHugh, and Singleton took over his defense. Hughes, who signed the entry of appearance and received all court mailings, participated in plea negotiations prior to the trial. The trial commenced on August 12, 1991, with Caldwell as counsel. On August 23, Hughes requested a one-week continuance for preparation after Caldwell required surgery, but the court denied the request and scheduled trial dates from August 26-28 and resuming on September 3.
During the trial, damaging testimony was given by Madelyn Torres, but Hughes effectively cross-examined her, and Caldwell assisted on August 26. Caldwell was absent on August 28, but no critical testimony was presented that day. From August 23 to September 3, Hughes had seven days to prepare, during which the only significant testimony against Santana came from Torres, which Hughes managed well in cross-examination. To claim ineffective assistance of counsel, Santana must demonstrate that Hughes's performance was deficient and that this deficiency prejudiced his defense, as outlined in Strickland v. Washington. Deficiency is defined as representation falling below reasonable standards, and prejudice exists if there is a reasonable probability that the outcome would have differed but for the errors.
Hughes' performance in Santana's case met the standards of the Strickland test, and Santana's arguments regarding his sentence lack merit. Candido Ortiz-Martinez was convicted of conspiracy to distribute cocaine, distribution of cocaine, and using firearms during drug trafficking, receiving a total sentence of 592 months' imprisonment followed by five years of supervised release. Ortiz contended that the district court erred by not granting his motion for acquittal due to insufficient evidence; however, evidence including witness testimonies and cash seizures supported the jury's verdict. Gabriel Jaime Ramirez-Nazar faced convictions for conspiracy and distribution of cocaine, receiving 188 months' imprisonment followed by five years of supervised release. Evidence showed Ramirez facilitated a cocaine transaction involving significant quantities, leading to his arrest. Carlos Fuentez was convicted of conspiracy, distribution, and firearms offenses related to drug trafficking. All defendants' remaining arguments were found to be without merit.
Fuentez received a 295-month prison sentence followed by five years of supervised release for his role as a courier in a drug distribution network, transporting drugs and cash between New Jersey and St. Louis. The government seized significant amounts of cash from him at the St. Louis airport. Fuentez contested the district court's refusal to allow (1) an in-court demonstration with a narcotics detection dog, (2) expert testimony from a toxicologist on currency contamination by narcotics, and (3) government funding for the toxicologist under 18 U.S.C. 3006A(e)(1). The court deemed the dog demonstration irrelevant, citing multiple factors influencing the currency seizure beyond the canine's positive reaction. Similarly, the proposed expert testimony lacked necessary context regarding the contamination levels in St. Louis. The court also found no reversible error in denying payment for the toxicologist because the underlying request for testimony was denied. Cited cases regarding funding for expert witnesses were deemed inapplicable due to differing circumstances. The remaining arguments presented by Fuentez were considered meritless.
Rodriguez-Calderon was convicted of conspiracy to distribute cocaine and engaging in financial transactions with drug proceeds, receiving a 262-month sentence followed by five years of supervised release. His arguments were focused solely on sentencing.
Stanley Pruitt was convicted of seven offenses related to drug trafficking and firearm possession, specifically: (1) conspiracy to distribute and possess cocaine (5+ kilograms) from January 1988 to February 1990; (2) and (3) two counts of using firearms during a drug trafficking crime (conspiracy) on June 16, 1989, under 18 U.S.C. 924(c); (4) possession with intent to distribute over 5 kilograms of cocaine on July 11, 1989; (5) distribution of cocaine on November 17, 1989; (6) possession with intent to distribute over 500 grams of cocaine on November 17, 1989; and (7) using a firearm during a drug trafficking crime related to distribution and possession on November 17, 1989. The relevant statute, 18 U.S.C. 924(c)(1), mandates additional imprisonment for using firearms in connection with drug offenses, with consecutive sentences for multiple violations.
Pruitt contends that his convictions for three separate violations of 18 U.S.C. 924(c) and the consecutive sentencing were improper. Evidence indicated that Pruitt became a primary dealer in the conspiracy starting March 1989. Law enforcement searched his residence on June 16, 1989, finding cash, records, and multiple firearms, including two shotguns and a rifle. A separate incident on November 16, 1989, involved an arrested associate who identified Pruitt as a cocaine supplier, leading to a recorded transaction and Pruitt's arrest while selling cocaine, during which over 600 grams of cocaine and a firearm were recovered. Further searches of Pruitt's other residences yielded more weapons and evidence linking him to the conspiracy.
Larry Smith, a lifetime acquaintance of Pruitt and currently in the Witness Protection Program, testified about Pruitt's possession of firearms at various locations, indicating they were used for protection in narcotics dealings. Smith recounted an incident at 5275 Beacon where Pruitt displayed a weapon and expressed readiness to confront intruders. Pruitt has a history of convictions under section 924(c) for using firearms during drug trafficking crimes, totaling 540 months of imprisonment, which includes a 60-month sentence for the first charge and 240 months for each of the subsequent charges.
Pruitt's appeal raises two key legal questions: whether a defendant can be convicted of multiple violations of section 924(c) based on the same predicate offense and if a second violation can be classified as a "second or subsequent" offense, allowing for consecutive sentencing. The court referenced the precedent set in United States v. Freisinger, affirming that multiple convictions for separate firearm possessions during a single drug trafficking crime do not violate double jeopardy. Therefore, Pruitt's two section 924(c) convictions based on firearms found at different locations were deemed proper.
Additionally, the court examined whether Pruitt's second conviction could be treated as a "second or subsequent" offense, which would warrant enhanced penalties. Citing United States v. Lucas, the court concluded that consecutive sentences for multiple section 924(c) violations based on the same predicate offense do not contravene double jeopardy protections, thereby supporting the imposition of consecutive sentences in Pruitt's case.
A court determined that multiple convictions under section 924(c) for carrying more than one firearm during a single drug trafficking offense should be treated as a first offense, with concurrent sentencing appropriate for each violation based on the same predicate offense. This contrasts with the case of Lucas, where consecutive sentences were imposed due to two separate stashes of weapons. The Supreme Court's ruling in Deal v. United States supports that consecutive sentences can be issued for "second or subsequent convictions" arising in the same proceeding. Consequently, the district court correctly sentenced Pruitt to five years for the first conviction and consecutive twenty-year terms for the second and third convictions.
On appeal, several appellants raised two main issues: (1) alleged racial discrimination in the government's use of a peremptory challenge to strike the only black juror, violating Batson v. Kentucky, and (2) erroneous admission of hearsay testimony as co-conspirator admissions under Federal Rule of Evidence 801(d)(2)(E). The Batson issue involved juror 1, the sole black or Hispanic juror, who was struck by the government, prompting a challenge from the defense. The government justified this strike by stating that juror 1 had previously testified in a case involving her sister, and her equivocal response regarding impartiality was deemed a valid, race-neutral reason by the district court. The appellants argued that the inclusion of a white juror with a personal connection to a federal bribery case undermined the government's justification for striking juror 1.
Significant differences exist between juror 1 and juror 14's experiences. Juror 14 did not witness his friend's trial, was not related to anyone involved, and lacked knowledge of the bribery case. He asserted that these factors would not impact his impartiality. Therefore, no clear error was found regarding the prosecution's racially neutral reasons for striking the black juror.
Regarding co-conspirator hearsay, Santana, Ramirez-Nazar, Fuentez, and Pruitt contended that the district court improperly admitted hearsay testimony from four witnesses under Federal Rule of Evidence 801(d)(2)(E). The Rule states a statement is not hearsay if made by a co-conspirator during the conspiracy's course and in furtherance of it. To meet this standard, the government must prove a conspiracy existed, that both the defendant and declarant were part of it, and that the declaration advanced the conspiracy.
The district court must conditionally admit co-conspirator statements, subject to an on-the-record ruling of admissibility. If a defendant does not request a specific ruling but motions for acquittal, the court's denial can be viewed as compliance with the required standards.
Appellants challenged Daniel Perkins's testimony about his observations of Stanley Pruitt, arguing it included hearsay. The court found Perkins's testimony based solely on firsthand observations, not hearsay, as he did not disclose any conversations.
Appellants also contested Madelyn Torres's testimony regarding visits from individuals delivering money to Frank Santana. The court ruled that her statements met the admissibility criteria under Rule 801(d)(2)(E), as independent evidence confirmed the involvement of the individuals in the conspiracy, and their discussions about money were in furtherance of it.
Appellants contest multiple facets of Felix Gil's testimony, a key prosecution witness and former money courier for Santana, currently in the Witness Security Program. They challenge Gil's conversations with various individuals, particularly Jose Hernandez and Francisco Herrera, asserting these discussions related to the conspiracy's operations and Gil's recruitment. The court finds these conversations permissible under Fed. Rule Evid. 801(d)(2)(E) since Herrera was a co-conspirator acting to further the conspiracy.
Additionally, the appellants dispute Gil's claims about Santana's income, primarily derived from drug sales, arguing that the testimony lacked specific speaker identification and thus was likely inadmissible. Nonetheless, the court infers harmless error due to Gil’s corroborating observations and the absence of a request for a Bell finding by counsel.
The testimony regarding Santana's alleged ownership of two New Jersey bars, supported by secondhand accounts, is also questioned. However, corroborative evidence from Madelyn Torres, who testified Santana had claimed ownership, and the recovery of his identification during a bar search, render any error in admitting this testimony harmless and peripheral to the case.
Finally, the appellants object to Sergeant Mario Recino’s testimony about a conversation with Brenda, who provided Santana's nickname and beeper number, leading to a drug purchase discussion. The court finds these statements incriminate only Santana and serve to advance his drug enterprise. Any potential errors in admitting this testimony are deemed harmless, particularly given the absence of a Bell finding request.
Regarding sentencing, appellants Fuentez, Ramirez-Nazar, and Rodriguez-Calderon argue the district court improperly attributed an excessive cocaine amount to them, establishing their base offense levels at 36 based on a conspiracy involving 50 to 150 kilograms of cocaine.
Standards for attributing drug quantities to defendants in a conspiracy are outlined in United States v. Olderbak. Under Section 1B1.3(a) of the Sentencing Guidelines, each conspirator is accountable for criminal acts in furtherance of the conspiracy unless these acts were outside the scope of their agreement or not reasonably foreseeable. A district court's determination of an individual defendant's drug quantity for sentencing is a factual finding reviewed under a clearly erroneous standard. In this case, the district court accepted findings from presentence investigation reports, concluding that Santana's organization distributed over 105 kilograms of cocaine in St. Louis. This figure was supported by witness testimonies and corroborating evidence, alongside seizures of approximately 13.5 kilograms of cocaine, $545,552 in currency, and checks, with wire transfers amounting to around $400,000. The total drug proceeds equated to approximately $945,000, translating to 41 kilograms of cocaine based on an average cost of $23,000 per kilogram, resulting in a sum exceeding 50 kilograms when combined with the seized amount. The court upheld the extrapolation of drug quantities from financial data, as previously endorsed in United States v. Carper. The district court determined that the total cocaine distributed was reasonably foreseeable to Fuentez, who was significantly involved in the conspiracy from its inception. Evidence included Fuentez's role as a money courier for co-defendant Taurino Gonzalez-Felix, testimony from multiple witnesses implicating him, and his presence during law enforcement actions, including the seizure of $22,680 from him and his involvement in drug sales.
On December 21, 1989, law enforcement officials stopped Fuentez at the St. Louis airport for the third time, discovering papers that included the beeper number of Frank Santana. The district court concluded that the total amount of cocaine involved in the conspiracy was attributable to Gabriel Ramirez-Nazar, who played a significant role as a courier/middleman for Santana and closely collaborated with co-defendant Rodriguez.
On June 8, 1989, Ramirez received a $5,000 wire from Larry Smith, directed by Rodriguez-Calderon, and delivered a vehicle containing nine kilograms of cocaine to Stanley Pruitt in St. Louis. Shortly after, Ramirez was arrested while sharing a room with ringleader John Yazbek. During his arrest on July 11, 1989, police found a document indicating he jointly owned an automobile with Yazbek and a false exculpatory statement was made by him. Testimony from Felix Gil and Madelyn Torres linked Ramirez to Santana, Yazbek, and other conspirators. Additionally, Santana’s arrest yielded an address book with Ramirez’s nickname.
While Ramirez is not directly implicated in law enforcement encounters beyond the cocaine delivery, strong circumstantial evidence suggests his active participation in the conspiracy. The leadership’s trust in him to handle nine kilograms of cocaine, valued at approximately $207,000, contradicts Ramirez's claim of being a minor participant. The district court found no clear error in attributing the total cocaine amount to him.
Jorge Rodriguez-Calderon also contested the attribution of the entire cocaine amount to him. Substantial evidence indicated Rodriguez's significant role, including directing a $5,000 wire to Ramirez to settle cocaine debts and overseeing operations in St. Louis. During his visit in June 1989, he managed the distribution activities of several conspiracy members. Testimony established that Rodriguez instructed others to deliver cocaine, reinforcing his leadership status within the conspiracy.
Rodriguez's active role in organizing the delivery of nine kilograms of cocaine and managing St. Louis operations highlights his central involvement in the conspiracy. The district court's decision to attribute the specified amount of cocaine to him is not seen as clearly erroneous. Both Santana and Rodriguez contest their sentence enhancements under U.S.S.G. 3B1.1 due to their significant roles in the criminal activity. Santana's offense level was increased by four levels for being an organizer of a conspiracy involving multiple participants, while Rodriguez's was raised by three levels for his managerial position. The court considers factors such as the nature of each defendant's role, recruitment of accomplices, and their level of participation when determining enhancements. The finding is reviewed under a clearly erroneous standard. Evidence supports that Santana was the leader of the conspiracy, managing substantial financial transactions and directing other conspirators, as confirmed by witness testimonies. His leadership was further evidenced by his self-identification to law enforcement as the conspiracy's head. The enhancement of Santana's offense level by four is supported by the facts presented. Similarly, Rodriguez's enhancement is justified based on his recognized leadership and management within the conspiracy, including his designation as the "big boss" and his tasks related to the cocaine shipment.
Evidence supports the district court's conclusion that Rodriguez acted as a manager or supervisor under U.S.S.G. § 3B1.1(b). Fuentez, Ramirez, and Rodriguez contested the court’s denial of reductions to their offense levels as minor or minimal participants per U.S.S.G. § 3B1.2(b). The refusal to grant such reductions is a factual finding reviewed under a "clearly erroneous" standard. To qualify as a minimal participant, a defendant must be among the least culpable involved in the group's conduct, and such exceptions are rarely applied, typically in cases involving minor roles, such as couriers in small drug transactions. Due to their significant involvement in the conspiracy, their claims for this exception lack merit. A minor participant must be less culpable than most others in the conspiracy; Fuentez's and Rodriguez's extensive roles negate their eligibility for this classification. The court found no error in denying Ramirez a reduction under § 3B1.2. The convictions and sentences of all appellants were affirmed. Notably, DEA agents seized large sums of currency from Fuentez on two occasions at the St. Louis airport, which he attributed to a friend in New York, without any claims for the currency's return. Under § 3B1.1, offense levels can be increased based on a defendant’s role, with a 4-level increase for organizers and a 3-level increase for managers or supervisors in extensive criminal activities.
