Rehearing and Rehearing En Banc Denied in No. 87-1670 December 22, 1988.
The appellants are five defendants who were convicted of various offenses under the federal narcotics laws. Their appeals raise a plethora of difficult issues for our consideration. We affirm the convictions of all defendants. However, we vacate Menelao Orlando Estevez' sentence and remand his case to the district court for resentencing.
This case arises out of an extensive cocaine network centered in Milwaukee, Wisconsin. Testimony at trial revealed the following. Evilio Pinto,
During the course of the conspiracy, members of the group regularly transported large quantities of cocaine from Miami to Milwaukee. The cocaine would be driven to Milwaukee, usually concealed in the spare tires of various vehicles. Upon its arrival in Milwaukee, the cocaine would be hidden and then distributed from residences and motel rooms obtained by the Estevez family for that purpose. Extensive records of all drug transactions were maintained. Approximately every two weeks, the money made from the sale of cocaine would be driven back to Florida. Lawrence Jackman, a member of the conspiracy, pleaded guilty and testified at trial about these various activities. As is evident in our later discussion of the sufficiency of the evidence claims raised by several of the defendants, Mr. Jackman's testimony — along with that of Evilio Pinto — proved crucial to the government's success in obtaining convictions against the defendants.
Over a nine-month period, state and federal officials conducted an investigation into the Estevez organization. Several of the defendants were placed under surveillance. Searches of discarded garbage at residences associated with the defendants regularly turned up evidence of narcotics trafficking such as plastic bags with cocaine residue, drug records, and narcotics paraphernalia. In addition, investigating officers discovered that various vehicles were registered under false names at addresses under surveillance. In the culmination of their efforts, on June 30, 1986 at approximately 7:40 a.m., federal and state officers and agents executed simultaneous search warrants at a house located at 173 North 63rd Street, Milwaukee and a house located at 8495 Woodvale Drive, Oak Creek, a suburb of Milwaukee. Celestino was arrested at the 63rd Street house. Agents of the Drug Enforcement Agency (DEA) searched the house and seized approximately 750 grams of cocaine from an orange safe in the closet of a bedroom, three handguns, and numerous drug paraphernalia, drug notes and documents.
Neither Rigoberto Moya-Gomez nor Orlando Estevez was present at either the 63rd Street house or the Oak Creek house on the morning of the searches. However, they did not escape the authorities for very long. Mr. Moya-Gomez was arrested on August 21, 1986 following a high-speed car chase. Orlando Estevez was arrested on August 27, 1986 during the execution of a search warrant at his residence in Miami. A search of his Miami residence uncovered an arsenal of weapons, a sum of money in excess of $21,000, two address books, numerous documents bearing the names of other codefendants, several documents detailing large cash purchases, a document entitled "Cocaine Handbook — An Essential Reference," and other miscellaneous drug-related items.
B. Procedural History
Celestino Estevez, Amado Leon, and Adalberto Herrera were named in the original indictment, returned by a federal grand jury on July 8, 1986. Thereafter, on August 26, 1986, the government obtained a superseding indictment that named an additional sixteen defendants, including Rigoberto Moya-Gomez and Orlando Estevez. In count 1 of the superseding indictment, the government charged all of the defendants with conspiracy to distribute cocaine in violation of 21 U.S.C. § 846.
Appeal of Menelao Orlando Estevez, No. 87-1670
Orlando Estevez was convicted of one count of conspiracy to possess cocaine with intent to distribute (count 1), six counts of possession of cocaine with intent to distribute (counts 3, 4, 7, 9, 13, and 14) and one count of conducting a continuing criminal enterprise (count 20). The district court sentenced Orlando to fifty years imprisonment on count 20, twenty years imprisonment on counts 4, 7, 9, and 13 to run concurrent with each other and consecutive to count 20, and fifteen years imprisonment on counts 3 and 14 to run concurrent with each other and concurrent with the sentence imposed on counts 4, 7, 9, and 13. Orlando asserts six reasons why he is entitled to a new trial: (1) the district court violated his sixth amendment right to counsel of choice by issuing a pretrial restraining order pursuant to the criminal forfeiture statute that encompassed attorneys' fees; (2) the district court violated his fifth amendment due process rights by refusing to hold a prompt, adversary, postrestraint evidentiary hearing to determine whether the restraining order was valid; (3) the district court erred by permitting him to proceed pro se without knowingly, intelligently, and voluntarily having waived his sixth amendment right to counsel; (4) the district court violated his speedy trial rights by denying him a continuance; (5) the district court violated his due process rights by denying him access to a law library, and equipment and services necessary for preparing a defense; and (6) the district court violated his due process rights by sentencing him to seventy years in prison. We address each of these contentions seriatim.
A. Criminal Forfeiture
The most significant issue raised by these consolidated appeals concerns the criminal forfeiture provision in the indictment. The issues that we must decide are (1) whether the pretrial restraint of a defendant's assets pursuant to the criminal forfeiture statute, 21 U.S.C. § 853, including funds that the defendant would otherwise use to pay attorneys' fees, violates the defendant's sixth amendment right to counsel of choice; and (2) whether the pretrial restraint of a defendant's assets without affording him an immediate postrestraint hearing violates the due process clause of the fifth amendment.
On September 2, 1986, the government sought an ex parte restraining order from the district court pursuant to the forfeiture provision of the indictment
Orlando was arraigned in the Eastern District of Wisconsin on September 30, 1986. At that time, attorney William P. Cagney III of Miami, Florida was present. Mr. Cagney advised the district court that he was entering a limited appearance for the purpose of litigating the forfeitability of attorneys' fees prior to committing to the unconditional representation of Orlando. On October 8, 1986, Mr. Cagney filed a motion on behalf of Orlando in which he asked the district court (1) to modify the ex parte restraining order entered on September 12, 1986 to permit Orlando to expend his own funds to retain counsel of his choice; (2) to modify the ex parte restraining order to allow Orlando living expenses for his family; and (3) "to conduct a prompt hearing wherein the government will be immediately required to establish that it is likely to convince a jury beyond a reasonable doubt that ORLANDO ESTEVEZ committed a violation of CCE [continuing criminal enterprise] and that all of his assets were derived therefrom." Orlando R.11 at 1 (emphasis in original). The motion asserted that "[a]bsent a modification of the restraining order, Mr. Estevez will be unable to retain counsel...." Id. at 2. The motion also stated that "Mr. Estevez desires to retain Mr. Cagney and his law firm to defend him" but that "Mr. Cagney and his law firm will not enter unconditional appearances as his counsel in this case unless and until the issues and questions concerning the forfeiture of attorneys fees is [sic] determined by this Court." Id. at 3.
On October 20, 1986, the district court issued an opinion on the attorneys' fees question. The court stated that "[i]nterpreting the forfeiture provisions of the Act to include attorney fees raises serious constitutional
Having construed the statute as exempting attorneys' fees from forfeiture, the court then defined what constituted legitimate attorneys' fees:
Id. (emphasis in original).
On October 27, 1986, Orlando filed a pro se motion in which he argued that the district court's resolution of the fee issue "continue[d] to thwart [him] from retaining counsel of his choice." Orlando R.15 at 1. Orlando asserted that a reasonable fee for Mr. Cagney would be in excess of $125,000. This estimation was based in part on Mr. Cagney's evaluation of the complexities of the case and in part on conversations that Mr. Cagney had with three other criminal defense lawyers, two in Miami and one in Milwaukee. Id. at 2. Orlando asserted that the district court's estimation of what constituted a "reasonable" fee was arbitrary because the court did not explain how it arrived at the $40,000 figure or otherwise announce the standards of reasonableness on which it relied. Orlando contended that the district court should never set the fee for retained counsel. According to Orlando, "[i]t is enough that retained counsel affirm that any monies paid him by his client are paid solely as attorney fees and related necessary costs." Id. at 3. At the very least, Orlando concluded, the district court should "hold a hearing and accept affidavits of experienced criminal trial counsel as to what would be a fair and equitable fee a client should be allowed to pay his counsel prior to the trial of this cause." Id. at 2-3.
Later in the day on October 27, 1986, the district court held a pretrial conference. At this time, the court entertained oral argument by Mr. Cagney on the issues raised in Orlando's motion for reconsideration.
Id. However, the court stated that it might consider raising the $40,000 limit at a later point. The court said: "Now, obviously if I became convinced at some time in this case that a sum in excess of [$40,000] was necessary to retain a competent lawyer and what the lawyer did in the case exceeded $40,000, I think I could and I would modify this order." Id. Mr. Cagney nevertheless declined to represent Orlando under the conditions imposed by the district court's October 20, 1986 order as orally amended on October 27, 1986.
2. The Sixth Amendment Issue
As a preliminary matter, we must decide whether we even need to reach the forfeiture issue. The government argues that we do not, for three reasons. First, the government contends that Orlando's reading of the district court's restraining order was overly broad, and that the order froze only those assets specifically listed in the forfeiture provision of the indictment. Second, the government asserts that the restraining order did not prohibit Orlando from paying fees to an attorney of his choice and that Orlando thus was always free to pay Mr. Cagney whatever he wished with his own funds. Third, the government argues that, in any case, Orlando's sixth amendment rights were not violated because the district court in fact exempted $40,000 in attorneys' fees from the restraining order. We reject the government's contentions on all three points.
The government's first argument assumes that the forfeiture provision in the indictment reached only those assets specifically listed therein. In this regard, we note that the indictment states that the property to be forfeited "shall include but not be limited to" the property thereafter listed. Orlando R.4 (emphasis supplied). The government conceded before the district court that this provision is "admittedly ambiguous," but explained that it did not intend that the restraining order reach assets not specifically identified in the forfeiture provision. Orlando R.13 at 2. The government further stated that it assumed that the district court also did not intend to restrain assets other than those specifically described in the forfeiture provision. The district court's only comment in this regard was its statement that "[a]rguably, the order also prohibits the disposal of assets which, if there is a conviction, will be found to have been obtained from violating the law." Estevez, 645 F.Supp. at 869 (emphasis supplied). We need not resolve this ambiguity because, as we shall explain, Orlando's sixth amendment right to counsel of choice was implicated by the forfeiture provision regardless of whether his assets were subject to a pretrial restraining order.
In addition to the above, the government's first and second arguments assume that Orlando could have paid his lawyer with assets not listed in the forfeiture provision of the indictment. In response to Orlando's motion in the district court to exclude attorneys' fees from forfeiture, the government contended that Orlando "ha[d] not shown that no unforfeitable funds [were] available to pay his counsel," Orlando R.13 at 7, and that Orlando also had not shown that he "propose[d] to pay attorney fees from funds generated by the liquidation of assets named in the forfeiture provisions." Id. at 8. The government
However, Orlando asserted in his motion to exempt attorneys' fees that the restraining order "froze all of [his] assets," Orlando R. 11 at 5 (emphasis supplied), and that the "restraining order effectuated a total forfeiture of the defendant's assets." Id. at 27. The district court never made a finding on whether Orlando had other assets with which to pay counsel. The district court's only comments on the matter were to note that the government contended that Orlando could pay his lawyer with assets not mentioned in the forfeiture provision and to state in a conclusory manner that, notwithstanding the government's contentions, "it seems clear that a defendant has standing to raise the issues Estevez raises here." Estevez, 645 F.Supp. at 870 (citing United States v. Bassett, 632 F.Supp. 1308 (D.Md.1986)). While the district judge held that Orlando was free to expend his own funds to pay counsel, id. at 872, he also commented that he did not "know if the defendant ha[d] any more money." Orlando R.25 at 36. Thus, the issue of whether Orlando had any of his own funds outside of the items listed in the forfeiture provision never was addressed or decided explicitly. We cannot resolve this factual dispute on appeal.
In any case, even if Orlando had funds outside the restraining order with which to hire Mr. Cagney — indeed, even if there had been no restraining order at all — we cannot say that the forfeiture provision of the indictment did not affect his right to counsel of choice. Under the "relation back" provision of the forfeiture statute, title to a defendant's property ultimately found to be forfeitable is deemed to vest in the government "upon the commission of the act giving rise to forfeiture under this section." 21 U.S.C. § 853(c).
United States v. Harvey, 814 F.2d 905, 921 (4th Cir.1987) (emphasis supplied), rev'd in part on other grounds sub nom., In re Forfeiture Hearing as to Caplin & Drysdale, Chartered, 837 F.2d 637 (4th Cir.1988) (en banc), petition for cert. filed, 56 U.S.L.W. 3739 (U.S. Apr. 11, 1988) (No. 87-1729); see also United States v. Monsanto, 852 F.2d 1400, 1403 (2d Cir.1988) (en banc) (per curiam) (Feinberg, C.J., concurring) ("the `relation back' provision of 21 U.S.C. § 853(c) has the same effect as a restraining order when applied to attorney's fees, since practical considerations will keep an attorney from accepting fees based upon the contingency of success at the criminal trial"). Assuming arguendo that Orlando had assets other than those subject to the restraining order with which to pay attorneys' fees, the distinct possibility existed that the government would seek forfeiture of those other assets after his conviction. Thus, while the government may have been correct that there was "no current impediment to Mr. Cagney's acceptance of fees for the representation of Mr. Estevez," Orlando R.13 at 4, the threat of forfeiture, as a practical matter, impacts upon the defendant's sixth amendment right to counsel of choice.
Finally, we address the government's third argument that Orlando cannot complain of a sixth amendment violation because the district court exempted $40,000 to pay attorneys' fees. This contention ignores the basis for Orlando's sixth amendment claim. Orlando argues that his sixth amendment right entails the right to pay an attorney of his choice whatever he wants as long as those fees are a bona fide payment for legal services rendered. Although we ultimately may disagree with Orlando's characterization of his sixth amendment right, we are squarely presented with deciding whether that characterization is the correct one. It is to this task that we now turn.
In 1984, Congress amended the criminal forfeiture provisions of both the Racketeering Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968, and the Continuing Criminal Enterprise (CCE) statute, 18 U.S.C. § 848, under which Orlando was convicted. These amendments sought to address specific problems perceived by the government in utilizing the criminal forfeiture statutes as initially drafted in 1970.
Id. at 3378. In response to this problem, section 853 of the CCE statute now permits the government to apply to the district court for a restraining order once an indictment is returned in order "to preserve the availability of property" that the government claims is subject to forfeiture. 21 U.S.C. § 853(e)(1). The statute does not expressly exclude attorneys' fees from the property subject to restraint. Our first task, therefore, is to determine whether the statute, properly read, applies to attorneys' fees.
We begin with the wording of the statute. It is clear that the plain language of section 853 makes no exception for attorneys' fees.
United States v. Nichols, 841 F.2d 1485, 1492 (10th Cir.1988).
Given the unambiguous wording of the statute, there is no need to refer to the legislative history. Indiana Port Comm'n v. Bethlehem Steel Corp., 835 F.2d 1207, 1210 (7th Cir.1987); Kelly v. Wauconda Park Dist., 801 F.2d 269, 270 (7th Cir.1986), cert. denied, 480 U.S. 940, 107 S.Ct. 1592, 94 L.Ed.2d 781 (1987). Nevertheless, an examination of the relevant history of the statute's legislative gestation produces nothing to undermine our conclusion with respect to the plain meaning. Indeed, it supports the wording of the statute. The House Report specifically notes that the treatment of attorneys' fees under the forfeiture statute is to be left to the courts. See H.R.Rep. No. 845, 98th Cong., 2d Sess., pt. 1, at 19 n. 1 (1984).
We turn therefore to the argument that the application of the statute to attorneys' fees violated Orlando's sixth amendment right to counsel by depriving him of his counsel of choice. It is not in dispute that a criminal defendant has a qualified right to retain counsel of his own choosing to conduct his defense in a criminal case. See In the Matter of Klein, 776 F.2d 628, 633 (7th Cir.1985); Ford v. Israel, 701 F.2d 689, 692 (7th Cir.), cert. denied, 464 U.S. 832, 104 S.Ct. 114, 78 L.Ed.2d 114 (1983). More than fifty years ago, the Supreme Court stated that "[i]t is hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice." Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 58, 77 L.Ed. 158 (1932); see also Crooker v. California, 357 U.S. 433, 439, 78 S.Ct. 1287, 1291, 2 L.Ed.2d 1448 (1958); Glasser v. United States, 315 U.S. 60, 75, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942). However, the sixth amendment right is not solely, or even primarily, concerned with ensuring that a criminal defendant be provided
Wheat v. United States, 486 U.S. 153, 108 S.Ct. 1692, 1696-97, 100 L.Ed.2d 140 (1988) (emphasis supplied). Thus, while all criminal defendants are entitled to some counsel, the circumstances under which a defendant is entitled to counsel of choice has been limited by other considerations, some under governmental control, some not. As the Fourth Circuit noted:
In re Forfeiture Hearing as to Caplin & Drysdale, Chartered, 837 F.2d 637, 645 (4th Cir.1988) (en banc), petition for cert. filed, 56 U.S.L.W. 3739 (U.S. Apr. 11, 1988) (No. 87-1729).
Forfeiture, or a restraining order freezing assets to ensure their availability for forfeiture, is another factor that can qualify the right to retain counsel of choice. A person cannot retain an attorney whose fee he cannot pay with his own assets. In the forfeiture situation, the assets in question are not the defendant's. As the Fourth Circuit so aptly stated:
Id. at 644. The Fourth Circuit further explained:
Id. at 645.
The imposition of a pretrial restraining order freezing the assets of the defendant that the government believes are subject to forfeiture may well have the practical effect of rendering the defendant indigent. However, this possibility does not, when it occurs, constitute a denial of the defendant's absolute sixth amendment right to counsel. While a defendant whose entire assets are subject to a restraining order will not be able to retain counsel of choice, he has the right to have counsel appointed. See United States v. Ray, 731 F.2d 1361,1366 (9th Cir.1984); United States v. Badalamenti, 614 F.Supp. 194, 197 (S.D.N.Y.1985). Appointed counsel must, of course, be competent in the constitutional sense. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Although we expect that, in making such appointments district courts will make every effort to appoint counsel experienced in complex criminal litigation, it must be acknowledged that appointed counsel may not always be able to offer the defendant the depth of experience or the range of investigative services that counsel of choice may have been able to provide. However, this contingency does not render infirm the forfeiture statute. Lack of economic resources often requires individuals to settle for a mode of professional service other than the one they would retain if expense were no object. One cannot spend money one does not have and, by virtue of the forfeiture provision and the restraining order, the funds in question are not the defendant's to spend.
3. The Due Process Issue
We turn to Orlando's second contention that the district court's issuance of a restraining order without holding an immediate postrestraint hearing violated his fifth amendment right to due process. The fifth amendment provides that a person may not be deprived of his life, liberty, or property without due process of law. Thus, we must decide first whether Orlando suffered a deprivation of life, liberty, or property, and second whether that deprivation occurred without due process of law.
We think it is clear that Orlando suffered a deprivation of property in the constitutional sense. Although the government's title is not established definitively until the entry of a judgment of conviction, title shifts, through the operation of the relation back provision,
Due process requires that a person not be deprived of his property without notice and opportunity for a hearing. See Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). To determine what process is due in a particular setting, we must consider three factors: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional procedural safeguards; and (3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural prerequisites would entail. See Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976); see also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542-43, 105 S.Ct. 1487, 1493-94, 84 L.Ed.2d 494 (1985).
We turn first to the private interest that is affected in this case. The interest at stake here is Orlando's interest in retaining counsel of choice. As we have noted already, this right is hardly an absolute one. On the other hand, the right also can be very significant. Staging a defense against a complex criminal charge is not an easy, nor an inexpensive, matter. It requires counsel skilled in marshalling complicated facts as well as learned in legal principles. It often involves dealing not only with the government but with many codefendants whose interests are not compatible and oftentimes overtly adverse. It also often involves significant investigative resources. As the Fourth Circuit noted:
Harvey, 814 F.2d at 928.
In assessing the nature of the private interest at stake, another factor must be recognized. For some purposes, the freeze imposed by the restraining order may in fact be characterized as "temporary." For instance, pending the outcome of trial, the existence of the freeze will require the defendant to postpone the use of the assets subject to the freeze. On the other hand, with respect to attorneys' fees, the freeze operates as a permanent deprivation. The defendant needs the attorney now if the attorney is to do him any good. It may be that the defendant retains some use of the funds inasmuch as he is able to secure other credit on the contingency that the assets subject to the freeze will later be available because of a favorable verdict. Assuming arguendo that such a contingency is a realistic one,
We next examine the second of the Mathews factors: the risk of an erroneous deprivation of the private interest through the procedures used and the probable value, if any, of additional procedural safeguards. The return of an indictment by the grand jury is, no doubt, adequate notification to the defendant of the pending forfeiture action as part of the criminal proceeding against him. However, due process
The statute at issue here does not provide for a post-restraint hearing. Indeed, when the pertinent provision, 21 U.S.C. § 853(e)(1)(A), is contrasted with the section governing preindictment freeze orders, 21 U.S.C. § 853(e)(1)(B), it is clear that Congress did not intend that such a hearing be held.
S.Rep. No. 225, supra, at 3385-86 (emphasis supplied); see also id. at 3396. Whatever may be the precise limits on the authority of the district judge at a hearing pursuant to 21 U.S.C. § 853(e)(1)(A), it is clear that the court may not inquire as to the validity of the indictment and must accept that "the probable cause established in the indictment or information is ... determinative of any issue regarding the merits of the government's case on which the forfeiture is to be based." Id. at 3386. It is therefore not open to the defendant to attempt to persuade the court that the government's claim to the property is any less strong than suggested by the government in the indictment which it procured on an ex parte basis. While a different legislative intent demonstrating more flexibility on the part of Congress might make our task easier, we cannot change, as Judge Miner points out in Monsanto, 852 F.2d at 1411-12, what is so clearly articulated both in the statute and the legislative history.
While the statute does not provide for a postdeprivation hearing, it has been argued that the subsequent criminal trial is an adequate opportunity for the defendant to contest the validity of the restraining order. The Supreme Court's decision in United States v. Eight Thousand Eight Hundred and Fifty Dollars ($8,850) in United States Currency, 461 U.S. 555, 103 S.Ct. 2005, 76 L.Ed.2d 143 (1983), seems to lend some support for this proposition. There, the Court held that the government's eighteen-month delay between the seizure of currency pursuant to the Bank Secrecy Act of 1970 and the filing of a civil forfeiture action did not violate the claimant's procedural due process rights. However, in reaching this result, the Court stressed that there was no evidence that the claimant desired early commencement of the civil forfeiture proceeding and that she had never alleged or shown that the delay prejudiced her ability to defend against the forfeiture. Id. at 569-70, 103 S.Ct. at 2014-15. In contrast, a criminal defendant without any funds not subject to the restraining order needs the frozen assets to make his case at the criminal trial. Relief not obtained prior to the commencement of the criminal trial simply will not be helpful in securing the assistance of counsel of choice at the criminal trial.
We also must note that the statutory scheme does present a great opportunity for abuse by the prosecutorial arm of the government. It permits the government, on the basis of an ex parte application to a grand jury — not a judicial officer — to affect significantly the ability of the defendant to participate in the adversary process of the criminal trial. We, of course, do not presume that those charged with the high responsibility of representing the government of the United States in a criminal proceeding would indulge in such a perversion of the criminal process. However, the constitutional validity of a statutory scheme hardly can turn on such an expectation. The adversary process is the basic framework of the American criminal justice system. It ensures the integrity of the
It may be argued, and not without some cogency, that the availability of appointed counsel diminishes, at least to some extent, the impact of any untoward government action that might otherwise be destructive of the adversary process. Yet, the fact remains that if the defendant is deprived of assets he otherwise would have, he is deprived artificially of his right to join issue with the government as he chooses. Without access to his resources, his options are limited.
We now turn to the third consideration mandated by the Supreme Court in Mathews: the government's interest, including the burdens that additional or substitute procedural prerequisites would entail. Here, we need not conjecture with respect to the burden on the government. Congress has spelled it out in no uncertain terms. Discussing the state of the law prior to the enactment of the present statute, the Senate Report noted that:
S.Rep. No. 225, supra, at 3378-79 (footnote omitted). These considerations, the product of a careful and deliberate judgment of Congress with respect to the need to deal with a very special and particularly dangerous form of crime, require our careful and respectful acceptance. It is not for us to second-guess the legislative branch with respect to the magnitude of the threat, the ineffectiveness of the earlier means of combating that threat, or the effectiveness of the means set forth in the present enactment. Nevertheless, it is our duty to determine whether the means chosen by the legislature are compatible with the principles of due process enunciated by the Supreme Court of the United States. Having set forth the various considerations under the three-part test enunciated in Mathews applicable to the statutory scheme at issue in this case, we now turn to that question.
In our view, the present statutory scheme — allowing no opportunity to place in question the government's allegation that certain property is subject to forfeiture — violates the due process clause when it results in preventing the defendant from using the restrained funds to secure the services of counsel of choice. Accord United States v. Unit No. 7 and Unit No. 8 of Shop in the Grove Condominium, 853 F.2d 1445 (8th Cir.1988); Harvey, 814 F.2d at 928; United States v. Crozier, 777 F.2d 1376, 1383-84 (9th Cir.1985); cf. United States v. Thier, 801 F.2d 1463, 1468-69 (5th Cir.1986) (court does not consider the constitutionality of section 853(e)(1)(A) because
We stress, however, the very limited degree to which we find the present statutory scheme constitutionally infirm. We deal only with a situation where the defendant presents a bona fide need to utilize assets subject to the restraining order to conduct his defense. If the district court finds that the defendant does not have other assets from which such payments can be made, it then must require the government to demonstrate the basis for its assertion, contained in the indictment, that the assets are subject to forfeiture. However, if the government elects not to disclose sufficient information to justify its retention of all of the assets subject to the freeze order, then the court must order the release of funds in an amount necessary to pay reasonable attorneys' fees for counsel of sufficient skill and experience to handle the particular case. Where such an order is entered, we stress that the district court, exercising its authority pursuant to 21 U.S.C. § 853(e), has a continuing obligation to scrutinize carefully the amount of attorneys' fees in order to avoid lavish fees or improper payments to the attorney. Of course, the district court's determination of what constitutes "reasonable" fees is subject to review on appeal.
In this case, the district court did not require the government to establish the sufficiency of the factual basis for its assertion that the funds subject to the restraining order eventually would be forfeited to the United States. Nor did the court determine whether Orlando in fact had funds not subject to forfeiture with which to pay his counsel of choice. However, under the circumstances of this case, these omissions did not deprive Orlando of his due process rights. The district court made available to Orlando what it believed to be a sufficient sum to permit the retention of an attorney of adequate experience and learning to conduct Orlando's defense. Moreover, the court made clear that it would permit additional funds to be released from the order if, at any point, it
In conclusion, we hold that application of the criminal forfeiture statute to include fees paid to an attorney does not violate the qualified sixth amendment right to counsel of choice. However, we also hold that the pretrial, postindictment restraint of a defendant's assets without affording the defendant an immediate, postrestraint, adversary hearing at which the government is required to prove the likelihood that the restrained assets are subject to forfeiture violates the due process clause to the extent that it actually impinges on the defendant's qualified sixth amendment right to counsel of choice. If the government seeks to restrain a defendant's assets without subjecting itself to a due process hearing of the type described above, and if the district court finds that the defendant has no other assets with which to hire his attorney of choice, then the government must consent to the exemption of reasonable attorneys' fees, as determined by the district court in its supervisory role, from the property otherwise subject to forfeiture.
B. Waiver of Counsel
We next consider whether the district court erred in permitting Orlando to proceed pro se. Orlando asserts that he did not knowingly, intelligently, and voluntarily waive his sixth amendment right to counsel. For the reasons that follow, we disagree.
1. Requirement of a Knowing and Intelligent Waiver
It is well established that a defendant has a right to conduct his own defense in a criminal case. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). However, before permitting a defendant to exercise this right, the district court must ensure that he knowingly and intelligently waived his sixth amendment right to counsel:
Id. at 835, 95 S.Ct. at 2541 (emphasis supplied). The Supreme Court recently has reemphasized the need for strict safeguards before permitting a defendant to waive his right to counsel. In Patterson v. Illinois, 487 U.S. 285, 108 S.Ct. 2389, 2398, 101 L.Ed.2d 261 (1988), the Court addressed the question of what "type of warnings and procedures ... should be required before a waiver of [the Sixth Amendment] right [to counsel] will be recognized." The Court said that its approach to the waiver question was a pragmatic one that asks "what purposes a lawyer can serve at the particular stage of the proceedings in question, and what assistance he could provide to an accused at that stage." Id. The Court further explained:
Id. (emphasis supplied). Thus, Patterson makes clear that, because of the importance of an attorney at the trial stage, "a more searching or formal inquiry" is required before a waiver can be found. Id.
The Supreme Court has not yet defined precisely the extent of the Faretta inquiry. But cf. Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316, 324, 92 L.Ed. 309 (1948) (plurality opinion of Black, J.) ("To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter."). The issue has been addressed, however, by several courts of appeals, including our own. See McMahon v. Fulcomer, 821 F.2d 934, 945 (3d Cir.1987); United States v. McDowell, 814 F.2d 245, 250 (6th Cir.), cert. denied, 484 U.S. 980, 108 S.Ct. 478, 98 L.Ed.2d 492 (1987); United States v. Mitchell, 788 F.2d 1232, 1235-36 (7th Cir.1986); McQueen v. Blackburn, 755 F.2d 1174, 1177 (5th Cir.), cert. denied, 474 U.S. 852, 106 S.Ct. 152, 88 L.Ed.2d 125 (1985); United States v. Welty, 674 F.2d 185, 188 (3d Cir.1982); United States v. Trapnell, 638 F.2d 1016, 1029 (7th Cir.1980). In Mitchell, this court attempted to provide some guidance to the district courts on the question:
788 F.2d at 1236 n. 3.
Several courts have noted that the district court often is placed in a difficult position when a defendant announces that he wants to represent himself at trial. On the one hand, a defendant has a constitutional right to represent himself, and on the other hand, the court has a constitutional duty to ensure that the defendant only represents himself with full awareness that the exercise of that right is fraught with dangers. No matter what decision the district court ultimately makes — whether to honor the defendant's request or to deny it — the defendant is
Although we stress the need for a thorough and formal inquiry as a matter of prudence and as a means of deterring unfounded claims on appeal, we shall not reverse the district court where the record as a whole demonstrates that the defendant knowingly and intelligently waived his right to counsel. See Mitchell, 788 F.2d at 1235. "The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused." Johnson, 304 U.S. at 464, 58 S.Ct. at 1023. The majority of courts that have considered the issue agree that the ultimate question is not what was said or not said to the defendant but rather whether he in fact made a knowing and informed waiver of counsel. See Stano v. Dugger, 846 F.2d 1286, 1288 (11th Cir.1988); Fitzpatrick v. Wainwright, 800 F.2d 1057, 1065 (11th Cir.1986); McQueen, 755 F.2d at 1178; United States v. Kimmel, 672 F.2d 720, 722 (9th Cir.1982); United States v. Weninger, 624 F.2d 163, 167 (10th Cir.), cert. denied, 449 U.S. 1012, 101 S.Ct. 568, 66 L.Ed.2d 470 (1980); see also McDowell, 814 F.2d at 248-49 (court bases decision on entire record but invokes supervisory power to require district courts to conduct the appropriate inquiry in the future); United States v. Bailey, 675 F.2d 1292, 1301 and n. 13 (D.C.Cir.) (same), cert. denied, 459 U.S. 853, 103 S.Ct. 119, 74 L.Ed.2d 104 (1982). But see McMahon, 821 F.2d at 946 (absent an inquiry, court has no way of assessing whether the defendant's decision to represent himself was made knowingly and intelligently); Welty, 674 F.2d at 189 (same).
We now consider the record in this case to determine whether it clearly establishes that Orlando knowingly and intelligently waived his right to counsel. The first factor we consider is whether the district court conducted a formal inquiry. In this case, Orlando's decision to proceed pro se was communicated to the district court at the October 27, 1986 hearing. On November 4, 1986, the district court held another hearing to consider Orlando's decision to proceed pro se. The following colloquy between the district court and Orlando took place:
Tr. of Nov. 4, 1986 at 5-7. This exchange between the district court and Orlando is unsatisfactory because the thrust of the inquiry was whether Orlando wanted an appointed attorney rather than the disadvantages of self-representation. However, the fact that Orlando was repeatedly advised of his right to have counsel appointed weighs in favor of finding a waiver. See McDowell, 814 F.2d at 248. We also note that, although the district court did not itself inform him of such, Orlando clearly understood the nature and seriousness of the charges against him as demonstrated by his statements that he did not want an attorney who lacked experience in CCE cases, that he was "looking at life imprisonment" and that the CCE charge against him was "very serious."
A formal inquiry in which Orlando was warned of the dangers and disadvantages of self-representation was conducted by the two Assistant United States Attorneys who were prosecuting the case. The following colloquy took place:
Id. at 8-10.
The fact that the government's attorneys did attempt to warn Orlando of the problems he would encounter in trying to represent himself weighs in favor of finding a waiver. We also are impressed that Orlando explicitly acknowledged that he knew that he would be at a disadvantage. However, we are disturbed by several aspects of the Faretta inquiry in this case. Most notably, we think it was inappropriate for the district court to have delegated its duty to ensure that Orlando knowingly and intelligently waived his right to counsel to the prosecuting attorneys. "It is the solemn duty of a federal judge before whom a defendant appears without counsel to make a thorough inquiry and to take all steps necessary to insure the fullest protection of this constitutional right at every stage of the proceedings." Von Molte, 332 U.S. at 722, 68 S.Ct. at 322 (emphasis supplied); see also Johnson, 304 U.S. at 464, 58 S.Ct. at 1023 (the trial judge bears the "serious and weighty responsibility ... of determining whether there is an intelligent and competent waiver by the accused"). This duty should not be discharged by enlisting the defendant's adversary to conduct the waiver inquiry. Cf. Von Moltke, 332 U.S. at 725, 68 S.Ct. at 324 ("The Constitution does not contemplate that prisoners shall be dependent upon government agents for legal counsel and aid, however conscientious and able those agents may be."). Thus, although some attempt to inform Orlando of the dangers and disadvantages of self-representation was made in this case, the manner in which it was done weighs against a finding of waiver.
We also are troubled by the rather perfunctory way the entire November 4, 1986 hearing was handled. Because the district court obviously considered its duty under Faretta less seriously than it ought to have, the scope of the inquiry conducted on November 4, 1986 was less than ideal. The same comment applies to the prosecuting attorneys, who bore a special duty, by virtue of the district court's delegation of authority, to discuss the problems inherent in self-representation more fully with Orlando. We once again remind the district courts not to take lightly the necessity of conducting a formal inquiry. As one court has said, "the fact of central concern to the Supreme Court is awareness by the defendant of `the dangers and disadvantages' attendant upon [the course of self-representation]. The most certain assurance of that awareness is by a colloquy on the record
A second factor to consider in deciding whether there has been a valid waiver is whether other evidence in the record establishes that the defendant in fact understood the dangers and disadvantages of self-representation. In this case, there is such evidence. At the October 27, 1986 hearing, Mr. Cagney represented to the district court that he had "tried to explain to [Orlando] some of the pitfalls to [self-representation]." Orlando R. 25 at 26. Additionally, Orlando regularly made references to his legal disability throughout the proceedings. Orlando's own admissions, coupled with Mr. Cagney's statement that he had warned Orlando of the risks involved, weigh heavily on the side of finding a waiver.
A third factor to consider is the background and experience of the defendant. The district court did not specifically question Orlando about his background. However, the record indicates that Orlando was no stranger to the criminal justice system with a prior felony conviction for fraud as well as "numerous contacts with the law in connection with related offenses." Tr. of Apr. 13, 1987 at 4. This factor weighs in favor of finding a waiver.
A fourth factor, and one that turns out to be very important in this case, is the context of the defendant's decision to proceed pro se. See McQueen, 755 F.2d at 1177 (court should consider the stage of the proceedings and the setting in which the waiver is advanced). On this point, we note the following facts. At the October 27, 1986 hearing, Mr. Cagney told the district court that Orlando would have to proceed pro se in order to preserve his rights on the issue of attorneys' fees. Mr. Cagney said:
Orlando R. 25 at 20 (emphasis supplied). Mr. Cagney further explained:
Id. at 26 (emphasis supplied). Orlando expressed his unequivocal agreement with Mr. Cagney on this point, as demonstrated by the following colloquy:
Id. at 42-43 (emphasis supplied).
We think the record is clear that Orlando's decision to proceed pro se was in response to the district court's resolution of the attorneys' fees question. Several courts have relied on the manipulative or strategic nature of a defendant's decision to represent himself in finding a waiver of counsel. See Fitzpatrick, 800 F.2d at 1067 ("Another factor that is important in this case is whether the defendant was attempting to delay or manipulate the proceedings. Evidence of manipulation or intentional delay implies a greater understanding of the proceedings and an understanding of the risks and complexities of a criminal trial." (citations omitted)); McQueen, 755 F.2d at 1178 (where the defendant was "cautioned that no replacement counsel would be appointed," his insistence on the third day of trial that his present counsel be removed from his defense "was the functional equivalent of a knowing and intelligent waiver of counsel"); Weninger, 624 F.2d at 167 (where the defendant "strategically chose to appear pro se," his "stubborn failure to hire an attorney constituted a knowing and intelligent waiver of the right to assistance of counsel"). But see Welty, 674 F.2d at 189 ("even well-founded suspicions of intentional delay and manipulative tactics can provide no substitute for the inquiries necessary to protect a defendant's constitutional rights").
Although we think the record clearly supports the view that Orlando's decision to proceed pro se was a tactical one, we note that the situation would be different if Orlando honestly thought that he had to take this course in order to preserve for appeal the forfeiture issue relating to attorneys' fees. See Tuitt, 822 F.2d at 177-79 (addressing question whether the trial court's insistence that the defendant expressly waive his right to counsel before being permitted to proceed pro se erroneously led the defendant to believe that he was being required to relinquish his objection to the court's denial of his motions to discharge his attorney and for a continuance to secure new counsel). If Orlando was under this misapprehension, then clearly his waiver of counsel was not made knowingly and intelligently. We note that Mr. Cagney's statements may be interpreted as manifesting a belief that proceeding pro se was necessary to preserve the issue. See Orlando R.25 at 20 (where Mr. Cagney stated that Orlando would have to "preserve his rights" by proceeding pro se). However, these statements also simply may manifest a litigation tactic to bolster his argument on the forfeiture question. In any event, we must consider the possibility that Mr. Cagney misled Orlando about his rights in order to force a decision by either the district court or this court on the forfeiture question. We recognize the obvious potential conflict between Mr. Cagney's interest in his fee and Orlando's interest in being represented by counsel at trial. In fact, Mr. Cagney was very candid on this point. He told the district court:
Tr. of Sept. 30, 1986 at 30.
However, after examining the record carefully, we conclude that there is no evidence that Orlando's decision to proceed pro se in fact was the product of his misunderstanding of his rights on appeal. Orlando's statements on the representation issue repeatedly emphasized that his reason for choosing self-representation was that he could not have Mr. Cagney represent him. For instance, at the October 27, 1986 hearing, he emphatically stated that he did "not wish to have another attorney in the entire United States to represent" him. Orlando R.25 at 42. And, on the morning of trial, in response to the district court's offer of court-appointed counsel, he stated: "I consider it an appointment made by the Court and paid by the Court, perhaps would find it a conflict between the government and myself." Tr. of Nov. 17, 1986 at 25. He also repeated his belief that a court-appointed attorney would not be experienced enough to represent him and that he needed an attorney like Mr. Cagney "to protect myself against any action taken by the government." Id.
Obviously, Mr. Cagney played a large role in the way Orlando proceeded. For instance, it appears from the record that Mr. Cagney's participation in the case did not end with the district court's October 27 order on the question of attorneys' fees. The district judge stated at one point toward the end of trial that he personally had seen Mr. Cagney in the building during trial on at least one occasion, and also intimated that Orlando had had Mr. Cagney's help in preparing several motions. See Tr. of Dec. 10, 1986 at 1772. In addition, Judge Evans received a request from Mr. Cagney through another attorney who represented Orlando's brother, Omar Estevez, that he [Judge Evans], "in effect, give some indication about how [he] was reading the case." Id. Judge Evans understandably was disturbed by this ex parte contact and stated on the record that:
Id. at 1773. Orlando denied that he had received any help from Mr. Cagney or from any other attorney. See Tr. of Dec. 11, 1986 at 1779-81. In addition, Mr. Cagney submitted an affidavit in which he stated that he had not assisted Orlando in preparing his defense. R.47 at 1. Mr. Cagney also stated in the affidavit that he had only been in the courthouse once during Orlando's trial and that his purpose for being there was to attempt to negotiate a plea agreement on Orlando's behalf. Id. at 2. The district court never followed up on its expressed intention of investigating further Mr. Cagney's involvement in the case after his withdrawal from representing Orlando. Thus, the court's statements on December 10, 1986, and Mr. Cagney's affidavit filed in response to those statements, are the only evidence in the record on the matter.
Nevertheless, the record demonstrates that, despite the district judge's apparent passivity at the November 4, 1986 hearing and failure to conduct an inquiry into the matter after trial, he actively pursued and monitored the situation during the proceedings. There is no indication in the record that Orlando was confused about his rights. On the morning of trial, the district judge clearly set forth his view that Orlando was an active participant in
Tr. of Nov. 17, 1986 at 24. The next day, the district judge again indicated that he believed that Orlando's decision to proceed pro se was premeditated and revolved around the forfeiture question. The court stated:
Tr. of Nov. 18, 1986 at 119. This explicit finding by the district court, which had the opportunity to assess by its sustained observation the demeanor of the participants, is entitled to our deference. We think the record shows that Orlando made a calculated choice. While we are mindful of the Supreme Court's admonition that "[t]o preserve the protection of the Bill of Rights for hardpressed defendants, we indulge every reasonable presumption against the waiver of fundamental rights," Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 465, 86 L.Ed. 680 (1942), we cannot ignore the district judge's view that Orlando's insistence that only Mr. Cagney was qualified to represent him was in reality an attempt to create grounds for reversal of his conviction on appeal. Accordingly, while certain factors weigh against a finding of waiver in this case, on balance we are satisfied that the record as a whole demonstrates that Orlando knowingly and intelligently waived his sixth amendment right to counsel.
2. Requirement of a Voluntary Waiver
Orlando also argues that his decision to represent himself was not a voluntary one
3. Court-Appointed Interpreter
Orlando argues that his waiver of counsel was defective because he was unable to understand the court-appointed interpreter. He asserts that his confusion resulting from the interpreter's translation is evident from the record. Initially, we have serious doubts about whether Orlando even needed an interpreter. At the November 4, 1986 hearing, the district court asked Orlando if he remembered the prior hearing at which Mr. Cagney argued the forfeiture issue.
The district court did not make a finding on whether Orlando could speak and understand English. See Tr. of Nov. 18, 1986 at 120. However, a remand to the district court for purposes of making such a finding is not necessary in this case. Matters regarding the use of an interpreter are left to the discretion of the district court. See United States v. Coronel-Quintana, 752 F.2d 1284, 1291 (8th Cir.), cert. denied, 474 U.S. 819, 106 S.Ct. 66, 88 L.Ed.2d 54 (1985); United States v. Anguloa, 598 F.2d 1182, 1185 (9th Cir.1979); see also Fed.R.Crim.P. 28. Orlando has not presented any evidence of the interpreter's incompetence or of his own inability to understand the interpreter other than his unsupported assertions. In contrast to these assertions, at the November 4, 1986 hearing, Orlando stated that he was "very happy with the translation Mrs. Ward is doing," although he also stated that he had some problems understanding certain legal terms. Tr. of Nov. 4, 1986 at 19. Although Orlando requested the district court to appoint a new interpreter on several occasions thereafter, the district court rejected his complaints. The court stated that Mrs. Ward was a certified interpreter, "eminently qualified," and "competent." Tr. of Nov. 7, 1986 at 5. In addition, the district court noted that Mrs. Ward successfully had acted as an interpreter in many other cases and that it saw "no reason ... to change." Id. The district court stated that it was "[its] sense ... from asking [Orlando] questions and listening to [Orlando's] responses through the interpreter that she [was] providing [Orlando] with the information properly as an interpreter should and [was] conveying ... [Orlando's] statements very accurately." Id. at 5-6. The district court also noted that Mrs. Ward was translating for several of the other defendants, and that no one other than Orlando had complained of a problem in understanding her. When Orlando persisted in his complaints, the district court stated:
Tr. of Nov. 24, 1986 at 403. The district court was in a much better position than we are to judge whether the interpreter was performing adequately. We are satisfied from our own review of the record that the district court carefully considered Orlando's objections to the interpreter and did not abuse its discretion in rejecting them.
4. Standby Counsel
Orlando submits that his conviction should be reversed because the district court did not appoint him an attorney once it became apparent at trial that he was unable to defend himself. The appointment of standby counsel is a well-recognized safeguard when a defendant elects to proceed pro se and one that should be employed on a regular basis. See Faretta, 422 U.S. at 835 n. 46, 95 S.Ct. at 2541 n. 46 (standby counsel can be appointed even over the defendant's objections); Welty, 674 F.2d at 193 n. 5 ("`Standby counsel should always be appointed in cases expected to be long or complicated or in which there are multiple defendants.'" (quoting
In a related argument, Orlando submits that the district court should have intervened once it became apparent at trial that he was incompetent to defend himself. The Sixth Circuit recently addressed a similar claim:
McDowell, 814 F.2d at 251. We agree with the Sixth Circuit's reasoning on this point and see no error in the way the district court handled the matter once Orlando elected to represent himself.
Orlando argues that the district court's denial of his request for a continuance violated his speedy trial rights under section 3161(c)(2) of the Speedy Trial Act. That provision provides that:
18 U.S.C. § 3161(c)(2) (emphasis supplied). Orlando asserts that the relevant date for purposes of this section is October 27, 1986, the date he decided to proceed pro se. It thus was error, under Orlando's view, for the district court to commence trial on November 17, 1986, only twenty-one days later.
Orlando's argument fails because the statute also provides that the thirty-day preparation period begins from the date on which the defendant first appears through counsel. In this case, Orlando first appeared through counsel on September 2, 1986. At that time, attorney Fred A. Schwartz of Miami, Florida filed a Notice of Permanent Appearance as Counsel of Record in the Southern District of Florida on behalf of Orlando. See Orlando R. 6 at E.
We reject Orlando's contention that the date he elected to proceed pro se rather than the date he first appeared through counsel is the relevant date from which to start counting days. When the defendant first appears through counsel, his later decision to proceed pro se should not trigger anew the thirty-day preparation period. To interpret the statute otherwise would enable a defendant to postpone his prosecution by deciding on the even of trial that he wants to dismiss his attorney and
Although the purpose of section 3161(c)(2) is to guarantee the defendant a minimum of thirty days for the preparation of his defense, "the statute only partially addresses `Congressional concern' about the adequacy of preparation and ... Congress inevitably relied on the trial judge's discretion to grant a continuance where necessitated by the circumstances of counsel's retention or appointment...." Id. at 1520. Orlando does not argue on appeal that the district court's denial of a continuance was an abuse of discretion. However, assuming that implicit in his speedy trial argument is an assertion that the district court abused its discretion, we also reject that claim. The district court's exercise of its discretion in scheduling trials and granting or denying continuances is "almost standardless." United States v. Rodgers, 755 F.2d 533, 539 (7th Cir.), cert. denied, 473 U.S. 907, 105 S.Ct. 3532, 87 L.Ed.2d 656 (1985); see also United States v. Davis, 604 F.2d 474, 480 (7th Cir.1979) ("virtually unreviewable"); cf. Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 1616, 75 L.Ed.2d 610 (1983) ("[B]road discretion must be granted trial courts on matters of continuances; only an unreasoning and arbitrary `insistence upon expeditiousness in the face of a justifiable request for delay' violates the right to the assistance of counsel." (quoting Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964))).
In this case, the district court made clear very early in the proceedings that it intended to adhere to the trial date that already had been set for November 17, 1986. We are not in the position to second-guess the district court's determination that Orlando's asserted need for additional time to prepare for trial was not outweighed by the additional burden that rescheduling would have placed on the court's docket. See Davis, 604 F.2d at 480. Orlando had twenty-one days from his decision to proceed pro se until his trial started in which to prepare his defense. He would have had longer if he had not decided to fire Mr. Schwartz and hire Mr. Cagney. Viewing the record as a whole, we cannot say that the district court abused its discretion. See Rodgers, 755 F.2d at 540 (no abuse of discretion where new counsel was appointed only two days before trial); Davis, 604 F.2d at 480 (no abuse of discretion where newly appointed counsel had two and one-half weeks to prepare for trial).
D. Access to Law Library and Other Legal Materials
Orlando contends that he was denied due process when the district court refused him access to a law library and other legal materials allegedly needed in order to prepare his defense. His motion in the district court requested access to a law library, an interpreter to translate cases into Spanish, a typewriter to prepare motions, and access to other defense attorneys and codefendants to discuss his case
The Supreme Court has held that prisoners have a due process right to adequate, effective, and meaningful access to courts to challenge violations of their constitutional rights. See Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). This court has held that "this right is possessed not only by convicted prisoners, but by pretrial detainees who are jailed pending trial." Johnson by Johnson v. Brelje, 701 F.2d 1201, 1207 (7th Cir.1983) (citing Lock v. Jenkins, 641 F.2d 488, 498 (7th Cir.1981)). Nevertheless, Orlando's claim that he was denied this right to access need not detain us very long. The same contention was rejected in United States ex rel. George v. Lane, 718 F.2d 226 (7th Cir.1983). In Lane, we held that "when a defendant (pretrial detainee) is offered the assistance of appointed counsel and refuses the same, no constitutional right exists mandating that the prisoner in the alternative be provided access to a law library should he choose to refuse the services of court-appointed counsel." Id. at 227; see also Howland v. Kilquist, 833 F.2d 639, 643 (7th Cir.1987); Johnson by Johnson, 701 F.2d at 1208; cf. Milton v. Morris, 767 F.2d 1443 (9th Cir.1985); United States v. Wilson, 690 F.2d 1267 (9th Cir.1982), cert. denied, 464 U.S. 867, 104 S.Ct. 205, 78 L.Ed.2d 178 (1983); United States v. Chatman, 584 F.2d 1358 (4th Cir.1978).
This case presents us with no special circumstances that would permit our deviation from the holding in Lane. This matter was raised by Orlando at the time he rejected, as a calculated effort to secure the services of Mr. Cagney at Mr. Cagney's price, the district court's offer of (1) release of an initial $40,000 from the restraining order to retain private counsel, or (2) appointed counsel. Moreover, as we already have noted, the district court monitored the matter of Orlando's representation throughout the trial. At one point, the court verified that Orlando had copies of all the discovery material given earlier to Mr. Cagney. In addition, the court required that Orlando be given a copy of the indictment, the pertinent section of the United States Code, "[a]nd perhaps Xerox copies of a couple of the later decisions that explain the elements of the charge and so on." Tr. of Nov. 7, 1986 at 6. The court also required that the government supply Orlando with a copy of the government's trial brief. Accordingly, we reject Orlando's due process argument that he was denied access to the courts.
Orlando's final argument has merit. On April 13, 1986, Orlando appeared before Judge Evans for sentencing. In imposing sentence, Judge Evans made the following remarks:
Id. at 19-20 (emphasis supplied).
It is well established that a district court has wide discretion in determining what sentence to impose. See United States v. Mealy, 851 F.2d 890, 905 (7th Cir.1988); United States v. Ryan, 810 F.2d 650, 658 (7th Cir.1987); United States v. Sato, 814 F.2d 449, 451 (7th Cir.), cert. denied, 484 U.S. 928, 108 S.Ct. 294, 98 L.Ed.2d 254 (1987). However, a district court abuses its discretion when it relies on improper criteria in imposing a sentence." `[A] criminal defendant has a constitutional right to be sentenced on accurate information, and this court will vacate a sentence if the district court relied on improper factors.'" Mealy, at 905 (quoting United States v. Cusenza, 749 F.2d 473, 478 (7th Cir.1984) (citations omitted)) (emphasis supplied); see also Sato, 814 F.2d at 452; United States v. Hoffman, 806 F.2d 703, 713 (7th Cir.), cert. denied, 481 U.S. 1005, 107 S.Ct. 1627, 95 L.Ed.2d 201 (1986).
The government asserts that although the district judge "initially expressed its concerns over the gamesmanship and trial strategy embarked upon by Attorney Cagney and Orlando," the judge "then indicated that in imposing a sentence, it considered a number of factors." Gov't's Br. at 68. These factors included: (1) a private presentence report prepared by National Legal Services; (2) the defendant's family background in Cuba; (3) the enormous size of the cocaine operation; (4) the sophistication of the cocaine operation; (5) the fact that Orlando was the criminal mastermind behind the organization; and (6) the aura of violence surrounding the organization. Tr. of Apr. 13, 1987 at 21-23. The government argues that we should affirm Orlando's sentence because the district judge clearly gave him individual consideration in imposing sentence and because the sentence imposed was within the statutory limits.
We cannot agree with the government's position. While the district judge did consider other factors, he also explicitly stated that he was imposing a larger sentence than he felt was appropriate. He repeated this statement even after he discussed the six factors noted above. See id. at 23 ("I will reiterate, I don't feel that I have this case in a posture that I can impose what I think is the appropriate sentence, instead I have to impose almost a provisional sentence...."). We cannot ignore the district judge's clear and unequivocal statements that the sentence he imposed on Orlando was greater than what he thought Orlando actually deserved. In doing so, the district judge relied upon an improper consideration, i.e., future developments in the case. "[T]here are few limitations on the type of information a district court can consider when sentencing a defendant." United States v. Cusenza, 749 F.2d 473, 478 (7th Cir.1984). However, the district judge's prognosis of our disposition of the defendant's case on appeal may not be considered. We therefore vacate Orlando's sentence and remand his case for resentencing.
Appeal of Celestino Orlando Estevez, No. 87-1280
The jury convicted Celestino Estevez of one count of conspiracy to possess cocaine with intent to distribute (count 1), six counts of possession of cocaine with intent to distribute (counts 2, 4, 7, 9, 13, and 14),
On appeal, Celestino challenges his convictions on counts 1 and 21. He argues that (1) the evidence was insufficient to prove that he held a supervisory role in the criminal enterprise; (2) the government failed to prove the requisite series of violations necessary to convict under a CCE charge; (3) the CCE count in the indictment was insufficient as a matter of law because it failed to allege the predicate acts in support of the charge; (4) the district court improperly permitted him to be convicted of conspiracy because it is a lesser included offense of the CCE charge; and (5) the district court erred in not granting his motion for severance. We consider each of these arguments seriatim.
A. Supervisory Role in the CCE
Celestino's first argument is that the evidence was insufficient to support his conviction on the CCE charge because the government failed to prove that he held a supervisory, managerial, or organizational position with respect to at least five individuals. We first note that Celestino bears a heavy burden on this issue. In reviewing a claim of insufficiency of the evidence, this court "must review all the evidence and all reasonable inferences that can be drawn from the evidence in the light most favorable to the government." United States v. Pritchard, 745 F.2d 1112, 1122 (7th Cir.1984) (citing Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942)). The crucial question is whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original). "An appellate court will not weigh the evidence or assess the credibility of the witnesses." United States v. Ramirez, 796 F.2d 212, 214 (7th Cir.1986). Thus, "`[o]nly when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt, may an appellate court overturn the verdict.'" United States v. Moore, 764 F.2d 476, 478 (7th Cir.1985) (quoting Brandom v. United States, 431 F.2d 1391, 1400 (7th Cir.1970), cert. denied, 400 U.S. 1022, 91 S.Ct. 586, 27 L.Ed.2d 634 (1971) (quoting United States v. Redwine, 715 F.2d 315, 319 (7th Cir.1983), cert. denied, 467 U.S. 1216, 104 S.Ct. 2661, 81 L.Ed.2d 367 (1984))).
The CCE statute, codified at 21 U.S.C. § 848, requires proof of five elements: (1) a violation of the federal narcotics laws; (2) which crime is a part of a series of violations of the federal narcotics laws; (3) undertaken by the defendant and at least five other individuals; (4) with respect to whom the defendant holds a supervisory, managerial, or organizational role; and (5) from which the defendant receives substantial income or resources. 21 U.S.C. § 848(d); Garrett v. United States, 471 U.S. 773, 781, 105 S.Ct. 2407, 2413, 85 L.Ed.2d764 (1985); United States v. Markowski, 772 F.2d 358, 360-61 (7th Cir.1985), cert. denied, 475 U.S. 1018, 106 S.Ct. 1202, 89 L.Ed.2d 316 (1986). Celestino challenges the government's proof on the question of whether he held a supervisory, managerial, or organizational position with respect to at least five other individuals.
"The basic outlines of the disputed management element [of the CCE statute] have been liberally construed." United States v. Possick, 849 F.2d 332, 335 (8th Cir.1988). "The statute is written in the disjunctive language, and the government need prove only that the defendant was an organizer, or a supervisor, or held some management role, not all three." Id. Furthermore, the terms organizer, supervisor, or manager are to be given their ordinary meaning, United States v. Wilkinson, 754 F.2d 1427, 1431 (2d Cir.), cert. denied, 472 U.S. 1019, 105 S.Ct. 3482, 87 L.Ed.2d 617 (1985), and it is irrelevant that other persons may have exercised supervision superior to the defendant's, United States v. Becton, 751 F.2d 250, 254-55 (8th Cir.1984), cert. denied, 472 U.S. 1018, 105 S.Ct. 3480, 87 L.Ed.2d 615 (1985). See also United States v. Maull, 806 F.2d 1340, 1343 (8th Cir.1986), cert. denied, 480 U.S. 907, 107 S.Ct. 1352, 94 L.Ed.2d 522 (1987); United States v. Losado, 674 F.2d 167, 174 (2d Cir.), cert. denied, 457 U.S. 1125, 102 S.Ct. 2945, 73 L.Ed.2d 1341 (1982). The Eighth Circuit has summarized nicely the nature of the government's burden of proof on this question:
Possick, 849 F.2d at 335-36 (emphasis supplied) (citations omitted); see also United States v. Lueth, 807 F.2d 719, 731-32 (8th Cir.1986); United States v. Cruz, 785 F.2d 399, 407 (2d Cir.1986); Becton, 751 F.2d at 254-55.
We now examine the evidence to determine whether it was sufficient to support the jury's finding that Celestino occupied
Both Mr. Jackman and Mr. Pinto — Mr. Jackman in particular — were sufficiently high up in the organization to be able to provide an accurate picture of Celestino's role in the organization as a whole. We therefore cannot say that a reasonable jury could not infer from their testimony that Celestino occupied a supervisory role with respect to all individuals in the organization, excluding his two sons. We believe that a reasonable jury could infer from the testimony of Mr. Jackman and Mr. Pinto that Celestino directed and managed the organization as a whole when neither of his two sons was in Miami. We thus think that proof of Celestino's supervisory role in the organization, combined with proof that the organization employed five or more individuals, was, in this case, sufficient to satisfy the management element of the CCE statute. See Cruz, 785 F.2d at 407 ("Whether or not Cruz ever met the two streetcorner sellers, they clearly operated within an organization that he managed and organized." (emphasis supplied)); United States v. Lewis, 759 F.2d 1316, 1331 (8th Cir.) (per curiam) ("it is sufficient to sustain the prosecution if the superior works with a total of five participants"; in this case, the defendant "occupied a sufficiently central role to be regarded as holding" a supervisory position and "at least five others participated in the enterprise in such a way that they could be said to have fallen under [his] managerial authority"), cert. denied, 474 U.S. 994, 106 S.Ct. 406, 88 L.Ed.2d 357 (1985); cf. United States v. Tarvers, 833 F.2d 1068, 1074 (1st Cir.1987) (discussing whether the management element of the CCE statute "refers to five specific persons or simply defines the size of the enterprise," and deciding that the district court need not require unanimity as to the identity of the five subordinates); Markowski, 772 F.2d at 364 ("[t]he statute does not make the identity of the five [people who acted under the defendant's supervision] important").
Celestino argues that the government must show that he independently exercised authority over five individuals before it can convict him of operating a CCE. He asserts that the government did not offer any evidence of his independent control and supervision and that the jury improperly inferred from his familial relationship with Orlando and Omar that he occupied a supervisory position. The government, on the other hand, argues that the CCE statute does not require that there be proof of independent supervision and that there was sufficient evidence to establish that Celestino occupied a position of control, although he himself was under the supervision of his two sons. We agree with the government that the CCE statute does not require proof that the defendant exercised supervision independent of any other individual's control. "There is nothing in the language of the CCE statute, or the cases applying it, that requires the government to establish that the defendant wielded absolute and exclusive control over
In any case, we think that there also was direct evidence from which a reasonable jury could infer that Celestino exercised supervisory authority over five specific individuals. First, the evidence clearly established that Celestino supervised the activities of Lawrence Jackman. Celestino often directed Mr. Jackman to deliver cocaine to prospective buyers. A witness who purchased cocaine from one of Celestino's customers testified that he knew Mr. Jackman as a drug runner who worked for Celestino. "To the extent that the government proves that a person collected money or delivered drugs for the defendant, the court will find that the defendant controlled that person. Sending people to do the actual distribution tasks clearly comes within the meaning of terms supervise, organize, or manage in the CCE." United States v. Zavala, 622 F.Supp. 319, 329 (N.D.Cal.1985), aff'd, 839 F.2d 523 (9th Cir.1988), petition for cert. filed, Mar. 30, 1988. Moreover, Celestino taught Mr. Jackman how to cut, package, and weigh cocaine. Instructing employees on the skills involved in the trade is one indication of managerial control. Cf. Possick, 849 F.2d at 337. When Mr. Jackman went over to a friend's house, Celestino would accompany him "to make sure that [he] wouldn't do anything wrong or run away again like [he] had done previously...." Tr. of Dec. 3, 1986 at 147. The use of coercion to maintain discipline among employees is another factor indicating ability to exercise control over others. Cf. Possick, 849 F.2d at 336.
Second, the evidence also clearly established that Celestino supervised or managed Evilio Pinto. Celestino supplied Mr. Pinto with cocaine. On one occasion, Mr. Pinto asked Celestino for three kilograms of cocaine to sell to a customer. Celestino refused to give him the three kilograms all at once and instead told Mr. Pinto that he could only have one kilogram at a time; after Mr. Pinto sold one kilogram and came back with the money, Celestino would give him the next kilogram. Celestino set this deal up while Orlando was in Miami. When Orlando found out about the deal, he instructed Celestino not to go through with it. Celestino nevertheless went ahead with the deal and dispensed the first kilogram to Mr. Pinto, who was arrested while trying to sell the cocaine to an undercover officer. This transaction clearly demonstrates Celestino's supervisory role with respect to Mr. Pinto. "[D]efendants who arrange the acquisition of the drug, its delivery, and set the price and credit terms have been found to fill a '"sufficiently central role"' to satisfy the requirements of the management element." Id. (quoting United States v. Grubbs, 829 F.2d 18, 19-20 (8th Cir.1987) (per curiam) (quoting United States v. Lewis, 759 F.2d 1316, 1331 (8th Cir.), cert. denied, 474 U.S. 994, 106 S.Ct. 406, 88 L.Ed.2d 357 (1985))); see also United States v. Peters, 791 F.2d 1270, 1290 (7th Cir.) (defendant organized, managed, and supervised the delivery of cocaine to his customers from a number of people), cert. denied, 479 U.S. 847, 107 S.Ct. 168, 93 L.Ed.2d 106 (1986).
Third, the evidence also showed that Celestino exercised supervisory power over Maria Pinto, Evilio Pinto's wife. Mrs. Pinto collected money as payment of drug debts for her husband while he was in jail. Later, she received a phone call from either Orlando or Celestino about the money she collected. Orlando and Celestino then went together to her house to get the money from her. On another occasion, Celestino called Mrs. Pinto from jail and asked her to collect money for him. Thus, the evidence showed that Mrs. Pinto worked for her husband, who in turn was directed by Celestino. Mrs. Pinto's testimony also indicated that Celestino exercised some supervisory authority over her directly.
Fourth, a reasonable jury also could find that Celestino supervised Orlando Carbonell. Mr. Carbonell apparently was hired by Orlando to act as Celestino's bodyguard. Celestino sent Mr. Carbonell back to Miami when he became dissatisfied with his services.
Fifth, the evidence was sufficient to establish that Celestino supervised or managed a group of regular customers,
Our review of the record thus establishes that a reasonable jury could have found that Celestino supervised, organized, or managed Lawrence Jackman, Evilio Pinto, Maria Pinto, Orlando Carbonell, and the south side group. Accordingly, we affirm Celestino's conviction of operating a CCE.
B. Proof of Three Predicate Acts
As noted in the previous section, under the CCE statute the government must prove "a continuing series of violations" of the federal narcotics laws. 21 U.S.C. § 848(b)(2). This language has been interpreted to mean that at least three violations must be shown. See United States v. Chiattello, 804 F.2d 415, 420 (7th Cir.1986); United States v. Markowski, 772 F.2d 358, 361 (7th Cir.1985), cert. denied, 475 U.S. 1018, 106 S.Ct. 1202, 89 L.Ed.2d 316 (1986). Celestino argues that his CCE conviction must be vacated because two of the substantive offenses — offenses that he was convicted of and that the jury may have relied upon in determining that the series of violations requirement was satisfied — were not proper predicate violations. The first improper predicate act, according to Celestino, is count 2 of the indictment. The district court entered a judgment of acquittal on that count.
Even assuming that count 2 is an improper predicate act because the district court acquitted Celestino on that count
Celestino argues that United States v. Ruggiero, 726 F.2d 913 (2d Cir.), cert. denied, 469 U.S. 831, 105 S.Ct. 118, 83 L.Ed.2d 60 (1984), supports his claim that the legal insufficiency of count 2 and counts 13 and 14 requires that his CCE conviction be vacated. Ruggiero involved a prosecution for RICO under which the government was required to prove at least two predicate acts. The RICO count in the indictment alleged that the defendant was involved in eight different conspiracies. The court previously had held that one of the eight conspiracies relating to gambling could not be used as a predicate act under RICO. As a result, the court determined that the defendant's conviction on the RICO count must be vacated:
Id. at 921. Ruggiero is distinguishable from Celestino's case. The defendant in Ruggiero was not charged with, and convicted of, the separate conspiracy offenses listed under the RICO count as predicate acts. Consequently, in Ruggiero, the court could not determine which offenses the jury found the defendant had in fact committed.
A case more like the present one is United States v. Pepe, 747 F.2d 632, 667-68 (11th Cir.1984). In Pepe, the defendant was convicted of a RICO violation. The RICO count of the indictment alleged ten predicate acts that incorporated by reference four other counts of the indictment.
C. Sufficiency of the CCE Charge in Indictment
Celestino argues that count 21 of the indictment was insufficient as a matter of law because it failed to inform him of the specific basis for the CCE charge. His argument is twofold: first, count 21 does not set forth any factual allegations such as the predicate offenses or overt acts in support of the charge; and second, it also fails to incorporate by reference any other counts in the indictment as predicate offenses.
"[A]n indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887,
We do not approve of the government's method of charging in this case. However, here we do not think it amounts to reversible error. Several courts have held that the government need not list the predicate acts in the indictment. See United States v. Zavala, 839 F.2d 523, 527 (9th Cir.1988) (district court did not err in denying a bill of particulars naming the predicate felonies for the continuing enterprise charge), petition for cert. filed, Mar. 30, 1988; United States v. Becton, 751 F.2d 250, 256 (8th Cir.1984) (the failure of the CCE count to list the specific violations of federal narcotics law constituting the alleged continuing criminal enterprise is not fatal to the indictment), cert. denied, 472 U.S. 1018, 105 S.Ct. 3480, 87 L.Ed.2d 615 (1985); United States v. Sterling, 742 F.2d 521, 526 (9th Cir.1984) ("there is no legal requirement that the violations which make up the continuing series be specifically listed in the indictment"), cert. denied, 471 U.S. 1099, 105 S.Ct. 2322, 85 L.Ed.2d 840 (1985); Sperling v. United States, 692 F.2d 223, 226 (2d Cir.1982) ("The law requires merely that there be evidence that the defendant committed three substantive offenses — even if not charged in separate indictments — to provide the predicate for a § 848 conviction."), cert. denied, 462 U.S. 1131, 103 S.Ct. 3111, 77 L.Ed.2d 1366 (1983).
In Becton, the Eighth Circuit relied on the fact that the other counts of the indictment gave the defendant notice of the underlying felonies: "Counts II and V specifically charged two narcotics law violations and the `overt acts' section of Count II listed allegations comprising additional violations." 751 F.2d at 256. In this case as well, Celestino was charged in six other counts with various narcotics violations under 21 U.S.C. § 841. These counts gave him actual notice of the predicate acts on which the government would rely at trial for conviction under the CCE count. See United States v. Rodriguez-Ramirez, 777 F.2d 454, 459 (9th Cir.1985) ("the indictment as written provided sufficient notice to defendants of the nature of the charges, and so served the essential functions of a criminal indictment"). In addition, Celestino does not contend that he was in fact unable to defend against the charges because of the government's lack of specificity in charging him. See Becton, 751 F.2d at 256 (if the defendant has actual notice of the charges, due process may be satisfied despite an inadequate indictment). He therefore was not prejudiced by any possible defect in count 21.
D. Conviction of Lesser Included Offense
As we noted earlier, Celestino was convicted of conspiracy (count 1) as well as conducting a CCE (count 21). A conspiracy charge is a lesser included offense of a CCE charge. See United States v. Peters,
Until recently, this circuit followed the majority of the circuits and vacated both the sentence and the conviction. We addressed this very question in Jefferson and said that the sentence and the conviction must be vacated. 714 F.2d at 703 n. 28. Most of the other circuits have used the same approach. See Possick, 849 F.2d at 341; United States v. Stallings, 810 F.2d 973, 975-76 (10th Cir.1987); United States v. Maull, 806 F.2d 1340, 1346-47 (8th Cir.1986), cert. denied, 480 U.S. 907, 107 S.Ct. 1352, 94 L.Ed.2d 522 (1987); United States v. Schuster, 769 F.2d 337, 343-45 (6th Cir.1985), cert. denied, 475 U.S. 1021, 106 S.Ct. 1210, 89 L.Ed.2d 322 (1986); United States v. Bascaro, 742 F.2d 1335, 1357-58 (11th Cir.1984), cert. denied, 472 U.S. 1017, 105 S.Ct. 3476, 87 L.Ed.2d 613 (1985); United States v. Oberski, 734 F.2d 1030, 1032 (5th Cir.1984), cert. denied, 469 U.S. 1113, 105 S.Ct. 797, 83 L.Ed.2d 790 (1985); United States v. Brantley, 733 F.2d 1429, 1436 n. 15 (11th Cir.1984), cert. denied, 470 U.S. 1006, 105 S.Ct. 1362, 84 L.Ed.2d 383 (1985); United States v. Smith, 703 F.2d 627, 628 (D.C.Cir.1983) (per curiam); cf. Ball v. United States, 470 U.S. 856, 864, 105 S.Ct. 1668, 1673, 84 L.Ed.2d 740 (1985) (where Congress did not intend to punish violations of two statutes separately, "[o]ne of the convictions, as well as its concurrent sentence, is unauthorized punishment for a separate offense" (emphasis supplied)). But see United States v. Benevento, 836 F.2d 60, 73 (2d Cir.1987), cert. denied, 486 U.S. 1043, 108 S.Ct. 2035, 100 L.Ed.2d 620 (1988);
We cannot ignore the existence ofBond. Under the doctrine of stare decisis, we are constrained to apply its holding here. Therefore, we must conclude that, under the prevailing precedent in this circuit, we cannot afford Celestino relief in this regard.
Celestino argues that the district court erred in denying his motion for severance under Federal Rule of Criminal Procedure 14. He contends that he was entitled to a severance because the disparity between the evidence against him and the evidence against his codefendant and son Orlando, made it impossible for the jury to consider independently the evidence against him. Celestino asserts that his familial relationship with Orlando made it even easier for the jury to impute to him all of the evidence implicating Orlando.
Rule 14 permits the trial court, in the exercise of its discretion, to grant separate trials when the interests of justice so require.
We think that Celestino has failed to meet his burden under this most difficult standard. It is clear that Celestino's contention that he was entitled to a severance is based on his belief that the evidence was insufficient to convict him of the CCE charge. He asserts that because there was no evidence to establish that he held a supervisory role in the CCE, his conviction on that count "must have resulted from the spill-over of evidence presented
Appeal of Amado Raphael Leon, No. 87-1310
Amado Leon was convicted of one count of conspiracy to distribute cocaine (count 1) and three counts of possession of cocaine with intent to distribute (counts 2, 13, and 14). He was sentenced to twenty years on count 1, and to ten years each on counts 13 and 14 to be served concurrent with each other and concurrent with the sentence imposed on count 1. On appeal, Mr. Leon argues that the district court erred in refusing to grant his motion for judgment of acquittal on count 14.
Mr. Leon filed a postconviction motion for judgment of acquittal on all counts in which he argued that the evidence was insufficient to support his convictions. The district court granted Mr. Leon's motion as to count 2,
Count 14 charged Mr. Leon with possession with intent to distribute approximately 750 grams of cocaine. Officials seized the 750 grams of cocaine during their search of the 63rd Street residence. At approximately the same time, other officials were arresting Mr. Leon at the Oak Creek residence. Mr. Leon argues that he cannot be convicted of possession when he did not have actual possession of the 750 grams of cocaine and when there was little or no evidence to establish that he had access to or control over the drugs. The government argues that the evidence established that Mr. Leon (1) had distributed cocaine regularly from the 63rd Street residence; (2) had collected money which was stored at that house; and (3) had access to the safe containing the 750 grams of cocaine and often took cocaine from it. Thus, the government asserts, the evidence was more than sufficient to establish that Mr. Leon constructively possessed the cocaine in the 63rd Street residence, or in the alternative, that he aided and abetted the possession with intent to distribute the 63rd Street cocaine.
At trial, the government argued that Mr. Leon was guilty of count 14 on theories of constructive possession, aiding and abetting, and vicarious coconspirator liability under Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946).
The rule of constructive possession holds that "a person can be convicted for possessing cocaine though he does not possess it in a literal sense." United States v. Manzella, 791 F.2d 1263, 1266 (7th Cir.1986). "To establish constructive possession of a controlled substance, the government must produce evidence demonstrating `ownership, dominion, or control over the contraband....'" United States v. Galiffa, 734 F.2d 306, 316 (7th Cir.1984) (quoting United States v. Ferg, 504 F.2d 914, 916-17 (5th Cir.1974)); see also United States v. Rodriguez, 831 F.2d 162, 167 (7th Cir.1987), cert. denied, 485 U.S. 965, 108 S.Ct. 1234, 99 L.Ed.2d 433 (1988); United States v. Perlaza, 818 F.2d 1354, 1360 (7th Cir.), cert. denied, 484 U.S. 861, 108 S.Ct. 176, 98 L.Ed.2d 130 (1987); Manzella, 791 F.2d at 1266; United States v. Shackleford, 738 F.2d 776, 785 (7th Cir.1984); United States v. Mancillas, 580 F.2d 1301, 1308 (7th Cir.), cert. denied, 439 U.S. 958, 99 S.Ct. 361, 58 L.Ed.2d 351 (1978). "Mere association with those who possess the drugs is not good enough." Manzella, 791 F.2d at 1266. However, "[r]esidence in a house used as a drug distribution center, and evidence of direct access to and participation in the [drug] distribution on the day of [the defendant's] arrest," is sufficient. Galiffa, 734 F.2d at 316.
Under the criminal attempt statute, 18 U.S.C. § 2, a person who aids and abets the commission of a crime can be punished as a principal. Because aiding and abetting is not a separate offense, it need not be charged separately in the indictment. Galiffa, 734 F.2d at 312. A person is guilty of aiding and abetting a crime if he "encouraged or assisted another in committing the offense, and ... had the intent to aid in its commission." Rodriguez, 831 F.2d at 167; see also United States v. Gabriel, 810 F.2d 627, 636 (7th Cir.1987); United States v. Collins, 779 F.2d 1520, 1528 (11th Cir.1986); United States v. Pope, 739 F.2d 289, 291 (7th Cir.1984). "Thus, the prosecution must prove (1) association, i.e., that the defendant shared the criminal intent of the principal; and (2) participation, i.e., some overt act designed to aid in the venture's success." Pope, 739 F.2d at 291.
Viewed in the light most favorable to the government as we are required to do, see supra Part III-A, the evidence was sufficient to support Mr. Leon's conviction of possession of the 63rd Street cocaine under either a theory of constructive possession or aiding and abetting. With regard to constructive possession, the evidence showed more than mere association with those who possessed the drugs. Lawrence Jackman testified that Mr. Leon knew the combination to the safe in the 63rd Street house and that he regularly took cocaine from it. A reasonable jury could conclude from his testimony that Mr. Leon had access to and ability to exercise control over the 63rd Street cocaine. With regard to aiding and abetting, the evidence is even more clear. The testimony of both Mr. Jackman and Mr. Pinto directly tied Mr. Leon to the conspiracy. Mr. Jackman described Mr. Leon's role as being primarily that of a "bodyguard," protecting the Estevez family and also the cocaine itself. This testimony was reinforced by the fact that the search of the Oak Creek residence turned up three guns. In addition, Mr. Jackman testified that Mr. Leon helped to load and unload cocaine. Mr. Pinto testified that Mr. Leon often was present during drug deals and even participated in
Appeal of Adalberto Herrera, No. 87-1390
Adalberto Herrera was convicted of one count of conspiracy to distribute cocaine (count 1) and one count of possession of cocaine with intent to distribute (count 13). The district court sentenced him to five-year terms in prison for each offense. The sentences are to run concurrently. On appeal, Mr. Herrera argues (1) that the evidence was insufficient on both counts; (2) that the district court's failure to give a jury instruction on the government's use of an alias constituted plain error; (3) that he was denied effective assistance of counsel; and (4) that the district court erred in refusing to grant him a severance. We address each of these claims seriatim.
A. Sufficiency of the Evidence
Our standard of review is limited by what a reasonable jury could infer from the evidence viewed in the light most favorable to the government. See supra Part III-A. The evidence at trial revealed the following. On the morning of June 30, 1986, Officer Robert Hillman, a Deputy Sheriff of the Milwaukee County Sheriff's Department, and four other Deputy Sheriffs assisted the DEA and the FBI in executing a search warrant at the Oak Creek residence. The officers arrived at the residence in full uniform at approximately 7:40 a.m. They knocked on the front door and announced: "police, search warrant." After repeating the announcement and receiving no reply, one of the officers made a forced entry using a sledgehammer to knock in the door. Upon entry, the officers discovered a broken wooden chair which had been placed up against the doorknob. Officer Hillman testified that they waited approximately 30 seconds before breaking down the door and that it took another 15 seconds before that task was accomplished.
Once inside the house, Officer Hillman and one other officer proceeded up the stairs. They again yelled out: "police, search warrant." As Officer Hillman reached the upstairs hallway, he saw Mr. Herrera come out of one of the bedrooms carrying a gun. He again yelled "police, search warrant," and ordered Mr. Herrera to drop his weapon. Mr. Herrera raised the gun to waist level. Officer Hillman raised his weapon and again ordered Mr. Herrera to drop his gun. Officer Hillman held his gun pointed at Mr. Herrera for approximately 5 seconds before Mr. Herrera lowered his own weapon. During these five seconds, Officer Hillman attempted to fire his gun at Mr. Herrera but the gun would not fire because the safety mechanism was not released. After lowering his gun, Mr. Herrera retreated to the bedroom located in the southeast corner of the house. Officer Hillman followed Mr. Herrera into the bedroom where he found Mr. Herrera lying on the bed. He then placed Mr. Herrera under arrest. Meanwhile, the other officer had arrested Amado Leon, who had retreated to another bedroom located in the northeast corner of the house. Officer Hillman testified that Mr. Herrera appeared to speak only Spanish and that Mr. Leon translated for him.
DEA Agent Robert Hartman also participated in the execution of the search warrant at the Oak Creek residence. He testified as to the items found in the search. A large gray safe was found in the closet of the master bedroom which could not be opened at that time because neither Mr. Herrera nor Mr. Leon appeared to know the combination. Later, at Agent Hartman's office, the safe was opened and 17 kilograms of cocaine and approximately $18,000 in United States currency were found inside. In addition to the safe, the search uncovered several guns with ammunition, items typically used in the packaging of cocaine such as silver duct tape and plastic bags, several notebooks, and a
After searching the house, the officers went to the garage where they found a brown 1986 Ford LTD. The vehicle was locked, and the officers were unable to find the keys to open it. Nonetheless, Agent Hartman was able to break into the car. A search of the interior did not turn up anything. Later, the keys to the brown LTD were discovered in the possession of Celestino Estevez, who was arrested at the 63rd Street house on the same morning. Agent Hartman later obtained a second search warrant for the car and uncovered another 12 kilograms of cocaine hidden in the spare tire and door panels.
Mr. Herrera asserts that the government's case is built on inferences piled upon inferences, none of which are supported by the record. He contends that the case against him consists solely of his presence at the Oak Creek residence on the morning of June 30, 1986 and his association with his codefendants, primarily Orlando Estevez. Significantly absent, he asserts, is any evidence that he knew about the drug conspiracy or intended to join in it.
a. conspiracy count
"A conspiracy consists of a combination or confederation between two or more persons formed for the purpose of committing, by their joint efforts, a criminal act." United States v. Hedman, 630 F.2d 1184, 1192 (7th Cir.1980), cert. denied, 450 U.S. 965, 101 S.Ct. 1481, 67 L.Ed.2d 614 (1981). A formal agreement need not be demonstrated although agreement is the primary element of a conspiracy. Id. Applying this definition to the evidence of conspiracy adduced at trial, it is clear that the government presented sufficient evidence from which the jury could have found that a conspiracy existed. Mr. Herrera does not argue to the contrary but rather insists that the evidence was insufficient to show that he was a participant in the conspiracy. We disagree.
In order to establish an alleged coconspirator's participation in the conspiracy, the government must prove that the alleged coconspirator knew of the conspiracy and that he intended to join and associate himself with its criminal design and purpose. United States v. Beniach, 825 F.2d 1207, 1211 (7th Cir.1987); United States v. Abayomi, 820 F.2d 902, 905 (7th Cir.), cert. denied, ___ U.S. ___, 108 S.Ct. 189, 98 L.Ed.2d 142 (1987); United States v. Herrera, 757 F.2d 144, 149 (7th Cir.1985); United States v. Percival, 756 F.2d 600, 611 (7th Cir.1985); United States v. Perry, 747 F.2d 1165, 1169 (7th Cir.1984). Even a slight connection between the defendant and the conspiracy may support a conviction. United States v. Alvarez, 833 F.2d 724, 730 (7th Cir.1987); Abayomi, 820 F.2d at 906; United States v. Perlaza, 818 F.2d 1354, 1359 (7th Cir.), cert. denied, ___ U.S. ___, 108 S.Ct. 176, 98 L.Ed.2d 130 (1987); United States v. Castillo, 814 F.2d 351, 353 (7th Cir.1987); United States v. Xheka, 704 F.2d 974, 988 (7th Cir.), cert. denied, 464 U.S. 993, 104 S.Ct. 486, 78 L.Ed.2d 682 (1983). "A single act may be foundation for drawing the actor within the ambit of a conspiracy.... But, since conviction of conspiracy requires an intent to participate in the unlawful enterprise, the single act must be such that one may reasonably infer from it such an intent." United States v. Quintana, 508 F.2d 867, 881 (7th Cir.1975) (quoting United States v. Varelli, 407 F.2d 735, 743 (7th Cir.1969)) (emphasis supplied). As the Quintana
United States v. Redwine, 715 F.2d 315,319 (7th Cir.1983) (citations omitted) (quoting United States v. Kwitek, 467 F.2d 1222, 1226 (7th Cir.1972), cert. denied, 409 U.S. 1079, 93 S.Ct. 702, 34 L.Ed.2d 668 (1972)), cert. denied, 467 U.S. 1216, 104 S.Ct. 2661, 81 L.Ed.2d 367 (1984); see also United States v. Guzzino, 810 F.2d 687, 696-97 (7th Cir.), cert. denied, 481 U.S. 1030, 107 S.Ct. 1957, 95 L.Ed.2d 529 (1987); Perry, 747 F.2d at 1169; United States v. Roman, 728 F.2d 846, 858 (7th Cir.), cert. denied, 466 U.S. 977, 104 S.Ct. 2360, 80 L.Ed.2d 832 (1984).
We first address Mr. Herrera's contention that the jury improperly convicted him merely because he was at the Oak Creek house on the morning of his arrest. In this regard, we note that it is well established in this circuit that mere association with, knowledge of, approval of, or presence at a conspiracy is insufficient to support a conviction for conspiracy. See United States v. Whaley, 830 F.2d 1469, 1473 (7th Cir.1987), cert. denied, 486 U.S. 1009, 108 S.Ct. 1738, 100 L.Ed.2d 202 (1988); Abayomi, 820 F.2d at 906; Perry, 747 F.2d at 1169; Xheka, 704 F.2d at 988-89; Quintana, 508 F.2d at 880; United States v. Baker, 499 F.2d 845, 848 (7th Cir.), cert. denied, 419 U.S. 1071, 95 S.Ct. 659, 42 L.Ed.2d 667 (1974). As the Fifth Circuit has said, the government must show more than that the defendant was arrested in "`a climate of activity that reeks of something foul.'" United States v. Gomez, 776 F.2d 542, 549 (5th Cir.1985) (quoting a series of cases cited at 776 F.2d at 549 n. 9) (footnote omitted). We reaffirm this principle today. However, "presence or a single act will suffice if the circumstances permit the inference that the presence or act was intended to advance the ends of the conspiracy." United States v. Mancillas, 580 F.2d 1301, 1308 (7th Cir.), cert. denied, 439 U.S. 958, 99 S.Ct. 361, 58 L.Ed.2d 351 (1978). Presence may "`make participation ... "more likely than not."'" Alvarez, 833 F.2d at 730 (quoting United States v. Dalzotto, 603 F.2d 642, 645 (7th Cir.), cert. denied, 444 U.S. 994, 100 S.Ct. 530, 62 L.Ed.2d 425 (1979)). This is such a case.
Viewed in the light most favorable to the government, the evidence showed that: (1) Mr. Herrera was arrested at the Oak Creek house where police found 17 kilograms of cocaine locked in a safe, as well as 12 kilograms of cocaine hidden in a car parked in the garage of that house; (2) the police had to break open the front door because of a chair propped up against the doorknob on the inside; (3) after the police entered the house, Mr. Herrera confronted them with a .357 revolver loaded with hollow point bullets; (4) despite being ordered to drop his weapon, Mr. Herrera raised a loaded and cocked revolver and pointed it at a uniformed police officer who responded by attempting to fire at him; (5) Mr. Herrera was carrying a Florida driver's license and spoke no English; and (6) Mr. Herrera had a card in his wallet that listed the Miami address and telephone number of Orlando Estevez. The jury reasonably could have inferred from these circumstances of his arrest that Mr. Herrera "was not an uninterested bystander, silently
Mr. Herrera asserts that our prior decisions in Baker, 499 F.2d 845, and Quintana, 508 F.2d 867, control the disposition of his case. The courts in both cases reversed the defendants' convictions because the evidence in support thereof consisted solely of presence and association. In Baker, the defendant was present at the lodgings he shared with a conspirator while drug business was discussed. In addition, he drove his roommate to the scene of the distribution accompanied by another person who was not a part of the conspiracy. In Quintana, the defendant was a conspirator's godson. His connection to the conspiracy consisted of his presence in the latter's store while conspiracy business was being discussed. There was no evidence, however, that he even heard the conversations, let alone did anything to advance the conspiracy's ends. Both these cases are distinguishable in that the jury in each had no reason to be suspicious of the defendants' presence and the government did not offer any affirmative evidence that the defendants intended to aid the conspiracy.
In contrast, the evidence in this case showed that the Oak Creek house was used as a drug distribution center. The jury properly could have concluded that Mr. Herrera's presence there signaled involvement in the conspiracy. See Perry, 747 F.2d at 1170 ("Certainly, there appears to be no other plausible explanation for Mr. Perry's presence...."); Mancillas, 580 F.2d at 1308 ("The jury could properly have concluded there was no reason for Lowry's presence in the car or the motel room unless he was a part of the deal."). In addition, as we already have noted, the jury reasonably could have relied on Mr. Herrera's actions in pointing a gun at a uniformed police officer as affirmative evidence that he intended to advance the ends of the conspiracy. The jury was instructed that mere presence at the scene of a crime and knowledge that a crime is being committed are not sufficient to establish guilt. We assume that the jury correctly applied the law as instructed. The jury could have concluded that Mr. Herrera's presence at the Oak Creek house did not establish his guilt beyond a reasonable doubt.
b. possession count
Mr. Herrera also argues that the evidence was insufficient to support his conviction for possessing the 29 kilograms of cocaine found at the Oak Creek residence. Specifically, he asserts that the government failed to prove that he constructively possessed the cocaine in the gray safe and in the brown LTD because there was no evidence from which the jury could have found that he was able to exercise control over it. However, we need not address Mr. Herrera's argument with respect to constructive possession because the evidence was sufficient to support his conviction on the ground that he knowingly aided and abetted the possession of the 29 kilograms of cocaine.
As we noted earlier in considering Amado Leon's challenge to the sufficiency of the evidence, see supra Part IV, the district court instructed the jury on liability under the aiding and abetting statute. In addition, the government argued to the jury that Mr. Herrera's conduct fell within that definition. In discussing Mr. Leon's appeal, we also set forth the standard of proof required to convict a defendant of aiding and abetting the possession of cocaine; we said that a person is guilty of aiding and abetting a crime if he encouraged or assisted another in committing the offense and intended to aid in the commission of the crime. We already have held that the evidence was sufficient for the jury to conclude that Mr. Herrera was at the Oak Creek residence guarding the cocaine. Accordingly, regardless of whether he had actual possession of, or was able to exercise control over, the drugs found in the safe and the brown LTD, his actions furthered the actual or constructive possession of the drugs by others. As such, he can be held liable for possession as an aider and abettor.
B. Jury Instruction on Improper Alias
Mr. Herrera next argues that his conviction should be reversed and a new trial granted because of the district court's failure to give a cautionary jury instruction on the government's improper use of an alias. At the beginning of trial, the district court presented a copy of the indictment to the jury that listed Mr. Herrera's name as "Adalberto Herrera, a/k/a Arroldo Herrera." The court explained to the jury that the term "a/k/a" meant "also known as," and that it was used to refer to various aliases that an individual might use. Before the indictment was given to the jury, Mr. Herrera's trial counsel objected to the inclusion of the name "Arroldo Herrera" on the ground that there was no evidence that Mr. Herrera ever had used that alias. The district court denied counsel's motion to strike the alleged alias and held that it was premature to rule on the issue. The court accepted the government's argument that it should wait to rule on the issue until after it had heard the evidence. If, at that point, the court determined that the government had failed to produce evidence linking Mr. Herrera to the alias, then the alias could be stricken from the indictment.
During the trial, the government introduced numerous exhibits bearing the names "Aroldo Herrera," "Arnoldo Herrera," and "Arroldo Herrera." These exhibits included documents such as utility bills for the 63rd Street house, telephone bills for the same house, Federal Express bills and receipts for items sent to and from the house, and various money order receipts. The government did not, however, offer any evidence that the defendant Adalberto Herrera had any connection with the names listed on those exhibits. In fact, Lawrence Jackman testified that there was no connection between those exhibits and the defendant.
In light of the government's failure to introduce any evidence linking Mr. Herrera to the various aliases, Mr. Herrera's trial counsel renewed his motion to strike the reference to "a/k/a Arroldo Herrera" from the indictment. He also requested that a cautionary jury instruction be given to the effect that the documentary evidence bearing similar sounding names be disregarded when considering the guilt or innocence of Mr. Herrera. The district court agreed but then forgot to give the instruction.
Mr. Herrera asserts that he is entitled to a new trial because he was greatly prejudiced by the district court's failure to give the instruction. He points to the large number of documents that came into evidence bearing the alias or a similar sounding name and contends that, because there was almost no evidence connecting him to the Estevez drug conspiracy, there was a substantial risk that the jury based its verdict of guilt on the improper evidence. He also notes an incident that occurred at trial, in which a juror was questioned by the district court on an unrelated issue and referred to him in response to the court's questioning as "Arroldo Herrera." This incident, he asserts, demonstrates that the jury was confused by the government's use of the alias.
We agree that the proposed instruction was proper and should have been given. When proof of an alias is relevant to identifying the defendant, or otherwise relates to the proof of the acts charged in the indictment, it is permissible for the prosecution to include it in the indictment. See United States v. Williams, 739 F.2d 297, 299 (7th Cir.1984); United States v. Clark, 541 F.2d 1016, 1018 (4th Cir.1976); United States v. Wilkerson, 456 F.2d 57, 59 (6th Cir.), cert. denied, 408 U.S. 926, 92 S.Ct. 2506, 33 L.Ed.2d 337 (1972). In this case, the government intended to use the alias for identification purposes. Apparently, the government hoped to connect Mr. Herrera to the conspiracy, at least in part, through the documentary evidence bearing the names "Arroldo Herrera," "Aroldo Herrera," and "Arnolod Herrera." Based on the government's representations to this effect, the district court denied Mr. Herrera's pretrial motion to remove the alias from the indictment. However, it became apparent after Mr. Jackman's testimony at trial that the government was unable to prove a link between Mr. Herrera and the alias. At this point, Mr. Herrera was entitled to have the alias stricken and an appropriate instruction given to the jury. See Clark, 541 F.2d at 1018.
However, Mr. Herrera's trial counsel neglected to point out that the final set of instructions omitted the requested cautionary instruction and thereby allow the district court to correct the error. See Fed.R.Crim.P. 30 ("No party may assign as error any portion of the charge or omission therefrom unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which that party objects and the grounds of the objection."); see also United States v. Markowski, 772 F.2d 358, 363 (7th Cir.1985) (the mere offer of an instruction does not satisfy Rule 30 or preserve a claim for
Plain error depends on whether, in light of the entire record, "the instructional mistake had a probable impact on the jury's finding that the defendant was guilty." United States v. Jackson, 569 F.2d 1003, 1010 (7th Cir.), cert. denied, 437 U.S. 907, 98 S.Ct. 3096, 57 L.Ed.2d 1137 (1978); see also Douglas, 818 F.2d at 1320 ("Plain error must be of such a great magnitude that it probably changed the outcome of the trial."). "Plain error analysis is not a panacea for every error of counsel; it is successfully employed only in the most compelling case." Douglas, 818 F.2d at 1320 (emphasis supplied); see also United States v. Kerley, 838 F.2d 932, 937 (7th Cir.1988).
We cannot say that the lack of the instruction probably affected the outcome of Mr. Herrera's trial. While the district court failed to give the instruction, it did remember to strike the reference to the alias in the indictment that the jury took into deliberations. During trial, the government never argued that Mr. Herrera's link to the Estevez conspiracy came from the documents bearing names similar to his. The government's key witness, Lawrence Jackman, disavowed any such link. Mr. Jackman explicitly testified that it was he who caused the various names to be placed on the documents in question and that he did not know Adalberto Herrera. The incident cited by Mr. Herrera in which a juror referred to him as "Arroldo Herrera" occurred prior to Mr. Jackman's testimony and thus does not convince us that the jury actually was misled. In addition, we held in the previous section that the evidence was sufficient to convict Mr. Herrera of the conspiracy. Under these circumstances, Mr. Herrera has failed to convince us that the instruction probably would have changed the outcome of his trial. See Clark, 541 F.2d at 1018 (prosecution's use of alias not prejudicial although defendant would have been entitled to have the alias stricken had he renewed his motion to strike during trial).
C. Ineffective Assistance of Counsel
Mr. Herrera claims that he was denied his sixth amendment right to effective assistance of counsel. Specifically, he asserts that his sixth amendment right was violated by (1) his trial counsel's failure to make a motion in limine to exclude the documents bearing Mr. Jackman's various aliases; (2) his trial counsel's failure to object at trial to the introduction of those documents; and (3) his trial counsel's failure to ensure that an appropriate cautionary instruction was given to the jury regarding this evidence.
The defendant bears a heavy burden in establishing an ineffective assistance of counsel claim. He must show (1) that his attorney's representation fell below an objective standard of reasonableness (performance prong), Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984), and (2) that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different (prejudice prong), id. at 694, 104 S.Ct. at 2068. See also United States ex rel. Barnard v. Lane, 819 F.2d 798, 802 (7th Cir.1987); United States v. Hillsberg, 812 F.2d 328, 336 (7th Cir.), cert. denied, ___ U.S. ___, 107 S.Ct. 1981, 95 L.Ed.2d 821 (1987). With regard to the performance prong, the defendant must identify the specific acts or omissions of counsel that form the basis for his claim of
We doubt that the omissions cited by Mr. Herrera in support of his sixth amendment claim constituted ineffectiveness of counsel in light of his trial counsel's vigorous and competent representation throughout the long and complex trial. The three alleged errors all relate to how counsel dealt with the government's use of the alias. We would be more sympathetic to Mr. Herrera's claim if his counsel simply had ignored the problem. However, quite the contrary, Mr. Herrera's counsel quickly identified the issue and immediately took action in the district court by requesting that the alias be stricken from the indictment. And, while as a tactical matter it might have been a good idea for counsel to have objected when the documents were introduced at trial, we cannot say that his failure to do so was unreasonable in light of the fact that the objection most likely would have been denied. The documents clearly were admissible at trial as evidence of the conspiracy regardless of whether the alias found on the documents belonged to Mr. Jackman or to Mr. Herrera.
The only serious error counsel made was failing to ensure that an appropriate jury instruction was given. However, we do not think that this single error rendered counsel's entire performance below an objective standard of reasonableness. This is particularly true in light of counsel's vigilance throughout the trial in protecting Mr. Herrera's interests in the matter. Indeed, to rebut any possible connection between Adalberto Herrera and the names on any of the documents, counsel recalled Lawrence Jackman and had him repeat his testimony that he was the person who used the aliases and that he in fact did not know who Adalberto Herrera was. We thus doubt that any of the failures cited by Mr. Herrera individually or collectively fell below an objective standard of reasonable competence in the context of counsel's overall efforts to insulate Mr. Herrera from any potential prejudice due to the alias documents.
In any event, we do not think that Mr. Herrera has satisfied the prejudice prong of the Strickland inquiry. We already have held that the evidence was sufficient to uphold his conviction and that the failure to give the jury instruction was not plain error. We therefore conclude that Mr. Herrera has failed to show that the result of his trial would have been different in the absence of the alleged omissions on the part of his counsel. See Hillsberg, 812 F.2d at 336.
Mr. Herrera's final argument is that the district court erred in refusing to grant him
Mr. Herrera contends that he was entitled to a severance because of an alleged disparity in the evidence. He asserts that the evidence of a conspiracy involving his codefendants was overwhelming as compared with the relatively slight evidence linking him to the conspiracy. In addition, he contends that he was entitled to a severance because the documentary evidence bearing a name similar to his own would not have been admissible in his separate trial.
Denial of a motion for severance may be an abuse of discretion if there is a great disparity of evidence between the moving defendant and his codefendants. United States v. Peters, 791 F.2d 1270, 1302, (7th Cir.), cert. denied, 479 U.S. 847, 107 S.Ct. 168, 93 L.Ed.2d 106 (1986). In such situations, the relevant inquiry is whether it is within the jury's capacity to follow the trial court's limiting instructions requiring separate consideration for each defendant and the evidence admitted against him. Id.; United States v. Kendall, 665 F.2d 126, 137 (7th Cir.1981), cert. denied, 455 U.S. 1021, 102 S.Ct. 1719, 72 L.Ed.2d 140 (1982).
In the instant case, the trial court instructed the jury at several stages of the proceedings that it was to consider each defendant separately. Moreover, we have concluded above that the evidence was sufficient to support Mr. Herrera's conviction and that the district court's failure to give a jury instruction on the documents bearing the alias was not plain error. Accordingly, Mr. Herrera can demonstrate no actual prejudice from the joint trial.
Appeal of Rigoberto Moya-Gomez, No. 87-1262
Mr. Moya-Gomez was convicted of one count of conspiracy (count 1) and one count of possession with intent to distribute (count 18). He was sentenced to twenty years imprisonment on count 1, and five years imprisonment on count 18. The five-year prison term on count 18 is to be served consecutive to the twenty-year sentence imposed on count 1. He appeals from the district court's refusal to sever the trial of count 18 from his joint trial with his codefendants on count 1.
The events leading to count 18 were established at trial through the testimony of Special DEA Agent John Felts. Agent Felts testified that he was acting in an undercover capacity on August 19, 1986 when he was introduced to Mr. Moya-Gomez as a potential source of cocaine by Joe Cartagena.
Prior to trial, Mr. Moya-Gomez made a motion in the district court to sever count 18 from the remainder of the indictment. The district court denied the motion and held that joinder of the counts was proper under Federal Rule of Criminal Procedure 8(a). After he was convicted, Mr. Moya-Gomez again raised the severance question
We first address the question of whether joinder of count 1 with count 18 was proper. Joinder under Rule 8(a) is permissible where offenses are (1) of the same or similar character, or (2) based on the same act or transaction, or (3) based on two or more acts or transactions connected together or constituting parts of a common scheme or plan. Fed.R.Crim.P. 8(a).
Count 1 alleged a conspiracy to possess cocaine with the intent to distribute it. Count 18 alleged a specific instance of possession with intent to distribute. With regard to the possession count, Agent Felts testified that Mr. Cartagena told him that "he was having problems acquiring the cocaine because his people were out of Milwaukee at the time." Tr. of Dec. 1, 1986 at 854. Mr. Cartagena also told Agent Felts that "his main source of cocaine was busted about two weeks earlier." Id. When Agent Felts asked Mr. Cartagena who that was, Mr. Cartagena replied, "you know, Leon and that crew." Id. A few days later, Mr. Cartagena brought Agent Felts to see Mr. Moya-Gomez, who supplied the cocaine involved in count 18. Arguably, the jury could have inferred from the above testimony that Mr. Moya-Gomez'
This theory is called into question, however, by the government's closing argument. In discussing the drug transaction alleged in count 18, the Assistant United States Attorney commented that "[o]bviously there was little or no connection with the Estevez group at that point of time. I can't begin ... to tell you who his [Moya-Gomez'] source of supply was." Tr. of Dec. 11, 1986 at 1904. Thus, the government seems to have disavowed that the August 19 transaction was in furtherance of the Estevez conspiracy. Nevertheless, the government appears to argue on appeal that counts 1 and 18 were properly joined because they were part of a common plan or scheme, and that the term "common plan or scheme" is broader than a single conspiracy. See Velasquez, 772 F.2d at 1353. In this regard, the government notes that the August 19 delivery of cocaine was arranged through Joe Cartagena, an individual affiliated with the Estevez organization, who was indicted and charged with being part of the conspiracy. In addition, Agent Felts was introduced to Mr. Cartagena by Felix Cordero, who also was indicted and charged with being part of the conspiracy. The government argues that this evidence permitted the inference that, although Mr. Moya-Gomez no longer managed the Milwaukee end of the Estevez operation after the summer of 1985, he continued to deal with the Estevez organization even after his more intimate involvement in the conspiracy was terminated. See generally United States v. Goldman, 750 F.2d 1221, 1224 (7th Cir.1984).
We think the question of whether the evidence at trial was sufficient to prove that the transaction alleged in count 18 was pursuant to the conspiracy alleged in count 1 is a close one. However, even if Mr. Moya-Gomez is correct that the evidence was not sufficient on this point, there is no misjoinder under Rule 8. Mr. Moya-Gomez concedes that the counts initially were joined properly as being parts of a single conspiracy; he argues only that the government ultimately failed to prove a link between count 18 and the conspiracy at trial. See Moya-Gomez' Br. at 6. Because joinder under Rule 8 is a matter of pleading rather than proof, Mr. Moya-Gomez' argument properly raises an issue of severance under Rule 14 rather than misjoinder under Rule 8. See United States v. Lane, 474 U.S. 438, 447, 106 S.Ct. 725, 731, 88 L.Ed.2d 814 (1986) ("[O]nce the Rule 8 requirements [are] met by the allegations in the indictment, severance thereafter is controlled entirely by Federal Rule of Criminal Procedure 14...."); see also United States v. Garner, 837 F.2d 1404, 1412 (7th Cir.1987) ("there is no requirement that the government demonstrate, at the pleading stage, sufficient evidence to support joinder"), cert. denied, 486 U.S. 1035, 108 S.Ct. 2022, 100 L.Ed.2d 608 (1988); Velasquez, 772 F.2d at 1354 ("the test for misjoinder is what the indictment charges, not what the trial shows"). Some cases hold that the absence of evidence at trial linking two sets of charges results in misjoinder if the defendant can show that the government knew that it could not prove a link when it joined the counts in the indictment and thus acted in bad faith. Velasquez, 772 F.2d at 1354. Mr. Moya-Gomez has not alleged bad faith in this case and therefore his claim must be addressed under Rule 14.
The principle is well established that a district court's denial of a motion under Rule 14 is reversible error only upon a showing of clear abuse of discretion. See United States v. L'Allier, 838 F.2d 234, 241 (7th Cir.1988); United States v. Berardi, 675 F.2d 894, 900 (7th Cir.1982); United States v. Aleman, 609 F.2d 298, 310 (7th Cir.1979), cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 780 (1980); United States v. Rajewski, 526 F.2d 149, 153 (7th Cir.1975), cert. denied, 426 U.S. 908, 96 S.Ct. 2231, 48 L.Ed.2d 833 (1976). "A defendant making a motion for severance
We do not think that Mr. Moya-Gomez has met his burden of demonstrating that this risk of prejudice was present in his case. Evidence of the conspiracy most likely would have been admissible in a separate trial on count 18 as other crimes evidence under Rule 404(b) of the Federal Rules of Evidence, albeit under limiting instructions. See United States v. Liefer, 778 F.2d 1236, 1240-44 (7th Cir.1985) (where defendant is charged with a specific intent crime, other crimes evidence is admissible to prove intent, even if defendant does not dispute his intent); see also United States v. Gruttadauro, 818 F.2d 1323, 1327-28 (7th Cir.1987). "In those instances where evidence of one crime is admissible at a separate trial for another, it follows that a defendant will not suffer any additional prejudice if the two offenses are tried together." United States v. Foutz, 540 F.2d 733, 736 (4th Cir.1976) (footnote omitted); see also United States v. Possick, 849 F.2d 332, 338 (8th Cir.1988).
Furthermore, even if, in a separate trial, the evidence would not have been admitted, we still would hold that the district court's denial of a severance was not an abuse of discretion in this case. Although the trial was long, the evidence on count 18 was not complex. As Mr. Moya-Gomez admits, the government's proof on count 18 consisted chiefly of the testimony of Agent Felts. There was little or no possibility that the jury could have been confused over which evidence related to which count. This court has observed that "`[t]he question of whether a joint trial infringes upon the defendant's right to a fair trial depends on whether it is within the jury's capacity, given the complexity of the case, to follow admonitory instructions and to keep separate, collate and appraise the evidence relevant only to each defendant.'" United States v. Cavale, 688 F.2d 1098, 1107 (7th Cir.) (quoting United States v. Hedman, 630 F.2d 1184, 1200 (7th Cir.1980), cert. denied, 450 U.S. 965, 101 S.Ct. 1481, 67 L.Ed.2d 614 (1981)), cert. denied, 459 U.S. 1018, 103 S.Ct. 380, 74 L.Ed.2d 513 (1982); see also Rajewski, 526 F.2d at 155 ("If the jury can reasonably be expected to keep the evidence separate as to each count and each defendant, severance should be denied."). Here, the jury was instructed to give separate consideration to each count in the indictment. "This instruction was an adequate safeguard against the risk of prejudice in the form of jury confusion, evidentiary spillover and cumulation of evidence." Berardi, 675 F.2d at 901. "Under our jury system ... it is fundamental that we reasonably trust juries to make factual determinations in accordance with the court's instructions." Aleman, 609 F.2d at 310. Taking all of these considerations into account, we conclude that Mr. Moya-Gomez has not met his heavy burden of demonstrating prejudice from the joinder of count 1 with count 18 so as to render the district court's denial of a severance an abuse of discretion.
For the foregoing reasons, we affirm the convictions of all the defendants. We vacate Orlando's sentence and remand his case to the district court for resentencing.
IT IS SO ORDERED.
Orlando R.1 (Superseding Indictment). [Citations are to the Record on Appeal of the appellant whose name precedes the citation.]
21 U.S.C. § 848(d) (Supp. IV 1986).
21 U.S.C. § 853(e)(1)(A) (Supp. IV 1986).
We decline to consider Celestino's arguments on this issue because he never raised them in the district court. Orlando Estevez' attorney, William P. Cagney III, explicitly stated that he was arguing for exemption of attorneys' fees on behalf of Orlando and did "not wish to raise [the issue] on [Celestino's] behalf." Tr. of Sept. 30, 1986 at 6. Celestino contends that Mr. Steele adopted the arguments made by Mr. Cagney. However, Mr. Steele's only comment was that he "believe[d] Mr. Cagney's articulated request at this point would probably follow to Mr. McNally." Id. at 22. This comment is insufficient to raise the forfeiture issue with respect to Celestino. There is no indication in the record that the issue was presented squarely to the district court; no pretrial motions ever were filed on Celestino's behalf raising the issue, and the district court's memorandum opinion on the forfeiture question addressed only Orlando's arguments as presented by Mr. Cagney. A defendant may not argue as a ground for reversal an issue that was not presented to the trial court. United States v. Hollins, 811 F.2d 384, 386 (7th Cir.1987); Holleman v. Duckworth, 700 F.2d 391, 394-95 (7th Cir.), cert. denied, 464 U.S. 834, 104 S.Ct. 116, 78 L.Ed.2d 116 (1983). The waiver rule is, of course, subject to the plain error doctrine of Rule 52(b) of the Federal Rules of Criminal Procedure. See United States v. Fuesting, 845 F.2d 664, 670-71 (7th Cir.1988). However, contentions raised for the first time on appeal under Rule 52(b) "must be newly-raised questions of law, untainted by factual ambiguity." United States v. McCabe, 720 F.2d 951, 955 (7th Cir.1983). In light of the fact that Celestino's forfeiture claim is rife with factual ambiguities regarding whether he in fact attempted to retain counsel of choice and in fact was prevented from doing so by the district court's order, we hold that he has waived the forfeiture question for purposes of this appeal.
Orlando R.13 at 2-3 (emphasis supplied). The government further argued that it would seek forfeiture of other assets, if at all, only in a separate civil proceeding under 21 U.S.C. § 881. Id. at 3-4. We fail to see how this fact advances the government's argument that the forfeiture provision of the indictment did not impede Orlando's ability to hire his attorney of choice.
21 U.S.C. § 853(a) (Supp. IV 1986); see also 21 U.S.C. § 853(b) (Supp. IV 1986) (defining "property" for purposes of the section); and 21 U.S.C. § 853(n) (Supp. IV 1986) (dealing with the rights of third parties).
H.R.Rep. No. 845, 98th Cong., 2d Sess., pt. 1, at 19 n. 1 (1984).
21 U.S.C. § 853(c) (Supp. IV 1986) (emphasis supplied).
21 U.S.C. § 853(e) (Supp. IV 1986).
Celestino R.35 (Second Superseding Indictment).
United States v. Aiello, 771 F.2d 621, 632 (2d Cir.1985) (quoting United States v. Osorio Estrada, 751 F.2d 128, 135 (2d Cir.1984), modified on other grounds, 757 F.2d 27 (2d Cir.), cert. denied, 474 U.S. 830, 106 S.Ct. 97, 88 L.Ed.2d 79 (1985)).
Moreover, Mr. Herrera offers an innocent explanation for why he pointed the gun at Agent Hillman. He claims that the evidence showed only that, in the early hours of June 30, 1986, he "was abruptly awakened from sleep by the police's use of a sledge hammer [sic] to break down the front door." Herrera's Br. at 25. Because he could not understand the language that was being spoken by the police officers, and was startled by the commotion that they created, "[he] went into the upstairs hall of the residence, with a pistol in hand, to confront the then-unknown intruders. [He] briefly raised the weapon for at most five seconds and then, realizing that it was the police, dropped the weapon to his side." Id.
The fact that the jury also heard evidence that exculpated Mr. Herrera does not dictate a reversal of his conviction. We already have noted that, in considering the sufficiency of the evidence, an appellate court does not weigh the conflicting evidence or assess the credibility of witnesses. We must examine all of the evidence and consider only whether the verdict reached by the jury was a rational one in light of the government's burden of proof. Moreover, even if the picture painted by Mr. Herrera of the events of June 30, 1986 were plausible, it is no more than one view of the evidence. "When presented with the conflicting hypotheses pursued by the government and [the defendant], ... we are obligated to credit the prosecutor's inferences." United States v. Beniach, 825 F.2d 1207, 1212 (7th Cir.1987). "The trier of fact is free to choose among various reasonable constructions of the evidence." United States v. Radtke, 799 F.2d 298, 302 (7th Cir.1986). We hold that the prosecution's construction of the evidence against Mr. Herrera is reasonable.
Tr. of Nov. 25, 1986 at 779-80.