United States v. Flavio Diaz Santana

Citations: 150 F.3d 860; 49 Fed. R. Serv. 1203; 1998 U.S. App. LEXIS 16938; 1998 WL 414469Docket: 97-3450

Court: Court of Appeals for the Eighth Circuit; July 24, 1998; Federal Appellate Court

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Flavio Diaz Santana appeals his convictions for conspiracy to distribute and possess with intent to distribute cocaine, and for aiding and abetting the possession with intent to distribute cocaine, as defined under 21 U.S.C. § 846 and § 841(a)(1). The case arose from a law enforcement investigation initiated in October 1996 after a confidential informant reported cocaine sales by Gerardo Arellano in Shakopee, Minnesota. Following a controlled buy of one ounce of cocaine, officers obtained a search warrant for Arellano's apartment but delayed execution to arrange a second purchase of fifteen ounces.

On October 30, the informant facilitated communication between Arellano and his supplier, leading to a meeting at Arellano's apartment. Officers observed Diaz and another individual, Timeteo Ruiz, arriving at the apartment with Arellano. After the informant inspected a large quantity of cocaine inside, officers executed the search warrant, uncovering fifteen packages of cocaine near Diaz, as well as additional cocaine and cash from various locations. Diaz was found to possess a significant amount of cash and had Arellano's phone number in his wallet. Fingerprint evidence linked Diaz to the cocaine packages.

A grand jury indicted Arellano, Diaz, and Ruiz on multiple counts, including conspiracy and aiding and abetting charges. Ruiz fled and is missing, while Arellano pled guilty and agreed to cooperate with the government. Diaz opted for trial instead of a plea deal. The district court's judgment against Diaz was affirmed by the Eighth Circuit Court of Appeals.

Arellano testified that for about three months, starting in August 1996, he received cocaine from Diaz, initially receiving two deliveries per week which increased to daily deliveries by October 1996. On the day of his arrest, Arellano attempted to acquire fifteen grams of cocaine from Diaz, who delivered the cocaine found in Arellano's apartment. Diaz denied Arellano's accusations, claiming he had no knowledge of any drug dealings until shortly before police intervention and explained his fingerprint on the bag as a result of picking it up out of curiosity. The jury convicted Diaz on both counts, leading to a 78-month sentence, the minimum allowed. Diaz appeals, asserting multiple trial defects, including prosecutorial misconduct and the admission of expert testimony. He argues that the government improperly bolstered Arellano's credibility during the trial. Specifically, Diaz cites two instances: Arellano stating he would tell the truth regarding his plea agreement and the prosecutor's comment in closing that the government seeks truth in convictions. The court found no improper vouching, stating that discussing plea agreements does not constitute vouching and that the prosecutor did not express personal opinions about Arellano's credibility. Additionally, Diaz challenges the admission of Captain Eldon Fontana's expert testimony about fingerprint recovery frequency, arguing it was improperly allowed. The district court's decisions regarding evidence admission are reviewed for abuse of discretion.

Rule 702 of the Federal Rules of Evidence allows expert witnesses to be qualified based on various forms of expertise, including experience. Fontana, with twenty-six years in law enforcement and control over the crime lab that conducted fingerprint testing, qualified as an expert. His testimony regarding the recovery of fingerprints from plastic bags was relevant and beneficial for the jury, supporting the district court's decision to admit it.

Diaz's claim of ineffective assistance of counsel cannot be properly addressed in this proceeding due to the need for factual development beyond the record; such claims are typically reserved for 28 U.S.C. § 2255 motions. The court will only consider them on direct appeal in exceptional circumstances, which do not apply here.

Diaz also argued that his convictions for conspiracy to possess cocaine with intent to distribute and aiding and abetting possession violated the Double Jeopardy Clause. However, as this claim was not raised in the district court, it is not permissible to bring it up on appeal. Additionally, precedent from United States v. Thomas establishes that such separate convictions do not violate the Double Jeopardy Clause.

Lastly, Diaz contended that the evidence was insufficient for his conviction, primarily disputing the credibility of witness Arellano. The court emphasized that credibility assessments are for the jury. The jury found Arellano's testimony credible, detailing Diaz's supply of cocaine over several months, which was sufficient to uphold the conviction.

Diaz contends that the district court made two errors during sentencing. He argues for a reduction in his offense level under U.S.S.G. § 2D1.1(b)(6) due to the safety valve exception in U.S.S.G. § 5C1.2, claiming he has not been given the benefit of a decrease that applies to defendants who provide full and truthful information about their offenses before sentencing. However, this argument is raised for the first time on appeal and is unsupported by the record, as Diaz did not provide any information to the government prior to sentencing.

Diaz also challenges the district court's calculation of the cocaine quantity attributed to him. The appellate review standard for drug quantity determinations is clear error, with a reversal occurring only if the record strongly indicates a mistake. The court's findings on witness credibility are largely unreviewable. The district court set Diaz's base offense level at 26, determining he was accountable for at least 500 grams of cocaine. While Diaz does not dispute the 476 grams seized, he contests the determination of the total quantity being 500 grams or more. His argument is deemed meritless, as it is supported by credible testimony from co-defendant Arellano, who stated he received multiple deliveries of cocaine from Diaz during the conspiracy. Consequently, the district court's judgment is affirmed.

Officers executing a search warrant discovered substantial quantities of cocaine and cash linked to defendants Diaz, Arellano, and Ruiz. Specifically, they found a plastic sack with fifteen one-ounce packages of cocaine near Diaz, 16 grams of cocaine in Arellano's shirt pocket, and 35.2 grams in his car's trunk. A total of $3,449 in cash was identified, with Diaz carrying $2,059, Ruiz $360, and the rest found in Arellano's closet. Diaz's wallet contained Arellano's phone number, and fingerprint analysis revealed Diaz's print on the cocaine packages.

A grand jury indicted all three on multiple counts of conspiracy and possession with intent to distribute cocaine under 21 U.S.C. § 846 and § 841(a)(1). Arellano pleaded guilty and agreed to cooperate with the government, while Diaz opted for trial. Arellano testified that Diaz had supplied him with cocaine for several months, leading to increased delivery frequency. In contrast, Diaz denied these allegations, claiming ignorance of Ruiz's dealings and suggesting his fingerprint was on the package due to his brief handling of it.

The jury found Diaz guilty on both counts, resulting in a 78-month prison sentence, the minimum allowed. Diaz's appeal raised claims of trial defects, including prosecutorial misconduct and the improper admission of expert testimony. He specifically cited instances where the government allegedly vouching for Arellano's credibility, referencing legal standards for improper vouching as articulated in past case law.

The government asserted during its closing argument that it seeks convictions based solely on the truth, which Diaz interprets as an attempt to ensure truthfulness. However, the court disagrees, noting that evidence related to plea or witness immunity agreements does not constitute vouching. The prosecutor did not express personal opinions on witness credibility or imply any undisclosed knowledge to the jury, hence there was no impermissible vouching. Diaz's other claims of prosecutorial misconduct were found to lack merit. 

Diaz contested the admission of Captain Eldon Fontana’s testimony regarding fingerprint recovery from plastic bags, arguing it was improper. The court reviewed the district court's decision for abuse of discretion and concluded that Fontana's extensive law enforcement experience, particularly in drug investigations, qualified him as an expert. His testimony was deemed relevant and beneficial for the jury's understanding, leading to the conclusion that the district court acted appropriately in admitting it.

Additionally, Diaz claimed ineffective assistance of counsel, but such claims typically require factual development outside the record and should be raised under 28 U.S.C. § 2255. The court noted it would only consider such claims on direct appeal in exceptional circumstances, which did not apply here. 

Finally, Diaz argued that his convictions for conspiracy to possess cocaine with intent to distribute and aiding and abetting possession violated the Double Jeopardy Clause. However, since this claim was not raised in the district court, the court ruled it could not be introduced for the first time on appeal, referencing established case law that precludes such action.

Separate convictions for offenses identical to those in the current case do not violate the Double Jeopardy Clause. The sufficiency of the evidence is assessed in the light most favorable to the verdict, granting the government all reasonable inferences. A reversal occurs only if a reasonable jury must have had doubt about the crime's elements. Diaz challenges the credibility of Arellano's testimony, which the jury found credible, and this testimony was sufficient to support his conviction for supplying cocaine.

Additionally, Diaz claims sentencing errors. He argues for a reduced offense level under U.S.S.G. 2D1.1(b)(6) based on the safety valve exception, but he raises this for the first time on appeal and fails to demonstrate he provided truthful information to the government pre-sentencing. Furthermore, Diaz contests the district court's drug quantity calculation, stating it should have been less than 500 grams. However, the court's determination of at least 500 grams was based on credible testimony from Arellano about multiple deliveries from Diaz, justifying the quantity determination.

The judgment is affirmed, with the court's findings on witness credibility being largely unreviewable on appeal.