United States v. Albert Sorondo, 845 F.2d 945, 11th Cir. (1988)
United States v. Albert Sorondo, 845 F.2d 945, 11th Cir. (1988)
2d 945
25 Fed. R. Evid. Serv. 1121
I. FACTS
2
The charges against the appellant, Albert Sorondo, stem from his sale of one
kilogram of cocaine to an agent of the Drug Enforcement Administration
("DEA"), David Lorino, and a paid DEA informant, Raphael O'Relly.
Appellant does not dispute the facts surrounding the sale. The informant,
O'Relly, met with appellant on November 20, 1986 and informed him that he
had contacted a person who wanted to buy cocaine. O'Relly told appellant that
The following day, O'Relly set up a meeting between appellant, agent Lorino,
and himself at a Denny's Restaurant. At the meeting, appellant stated that he
had been in contact with a friend and that he would be able to supply the
cocaine. He also produced a sample of cocaine which agent Lorino field tested
in the rest room. Lorino told appellant that he was satisfied with the quality,
and the three men left the restaurant. O'Relly and Lorino drove around and
waited for appellant, whom they believed had gone to pick up the twelve
kilograms of cocaine, to contact them by beeper. Appellant contacted them and
told them to meet him at a Holiday Inn. When they arrived at the hotel parking
lot, appellant informed O'Relly and Lorino that he had obtained only one
kilogram and that the remainder would be supplied in three kilogram
increments. He produced the one kilogram and was arrested. After being
appropriately informed of his rights, appellant signed a written confession
describing the meetings and the transaction.
As noted above, appellant does not contest his involvement in the transaction.
Indeed, appellant testified at his trial and described the sale. Rather than
dispute his involvement, appellant asserted a defense of entrapment. He argued
that O'Relly consistently pressured him until he finally broke down and
supplied the cocaine.
Through appellant's testimony and that of his wife, Miriam Sorondo, appellant
showed that his relationship with O'Relly began the month prior to the ultimate
cocaine sale. O'Relly met appellant at a bowling alley and informed him that he
had 25,000 pounds of marijuana in Texas which he wanted appellant to help
him sell. Appellant informed O'Relly that he was a musician and that he was
not interested in selling drugs, but he did eventually go to Texas. On his first
stay in Texas, appellant was taken blindfolded to a location where he saw
thousands of pounds of marijuana. At O'Relly's request, appellant made various
efforts to sell marijuana to individuals he knew in Miami. Appellant persuaded
four people to come to Texas, but was unable to sell any of the drugs. Appellant
returned home to Miami, but then returned to Texas at O'Relly's invitation for a
second effort to sell marijuana. Appellant was again unsuccessful.
Appellant and his wife testified that O'Relly and his associates called
appellant's home constantly to ask him to participate in drug transactions.
According to appellant's testimony, he consistently refused to participate.
Appellant testified that O'Relly ultimately agreed to leave him alone if he
would perform just one cocaine transaction. Appellant eventually agreed, and
the transaction led to his arrest.
7
At trial, the defense argued that O'Relly was paid a considerable amount of
money for his services and that he had a financial motive for pressuring the
appellant since he was paid on a case-by-case basis. The jury rejected
appellant's entrapment defense, however, and found him guilty of conspiracy to
distribute cocaine and distribution of cocaine. He was sentenced to the
mandatory minimum sentence of five years under 21 U.S.C. Sec. 841, and he is
currently incarcerated.
II. DISCUSSION
A. Mandatory Minimum Sentence
8
10
Q. And during that time, how many cases for you has he worked?
12
13 Oh, he has worked probably fifty or sixty. We made about forty cases that
A.
resulted in prosecution and seizures.
Q. Of the forty cases, how many resulted in convictions?
14
Mr. Dachs: Objection as to relevancy.
15
The Court: Objection overruled.
16
17 Witness: I can't think of one defendant that we have lost. We have convicted
The
well over a hundred people.
18
As an initial matter, the record shows that defense counsel objected to this
testimony only on the grounds of relevance. As the district court indicated by
overruling this objection, the testimony was relevant. It was related to the
government's attempt to establish O'Relly's value to the DEA and, more
importantly, it bore directly on O'Relly's ability as an informant and his
credibility as a witness. Thus, defense counsel's objection was properly
overruled.
20
21
The plain error standard is difficult to meet: "[p]lain error consists of error
which, when examined in the context of the entire case, is so obvious that
failure to notice it would seriously affect the fairness, integrity and public
reputation of judicial proceedings." United States v. Russell, 703 F.2d 1243,
1248 (11th Cir.1983). The Supreme Court has suggested that this standard
provides appellate courts with the power to prevent miscarriages of justice.
Frady, 456 U.S. at 163 n. 14, 102 S.Ct. at 1592 n. 14. It is this high standard
which we apply in the present case.
22
On direct examination, agent Sarron told the jury that O'Relly's assistance had
led to the conviction of well over one hundred other defendants. In effect, the
jury was told that a large number of other juries had found O'Relly to be a
credible witness and that those juries had never returned a verdict of not guilty
when O'Relly was involved in the case. This is extremely prejudicial testimony.
A jury has an obligation to "exercise its untrammeled judgment upon the worth
and weight of testimony" and to "bring in its verdict and not someone else's."
United States v. Johnson, 319 U.S. 503, 519, 63 S.Ct. 1233, 1241, 87 L.Ed.
1546 (1943). To ensure that a jury does not abrogate this responsibility, a trial
judge must be sensitive to the jury's temptation to allow the judgment of
another authority to substitute for its own. Thus, a trial judge is required
scrupulously to avoid expressing or implying his or her own opinion on the
merits of the case or the weight of particular evidence, lest the jury substitute
the trial judge's opinion for its own. See United States v. Cox, 664 F.2d 257,
259 (11th Cir.1981). Similarly, the judge must protect against the danger that a
jury will accept the judgment of an expert in place of its own. See United States
v. Barnette, 800 F.2d 1558, 1569 (11th Cir.1986), cert. denied, --- U.S. ----, 107
S.Ct. 1578, 94 L.Ed.2d 769 (1987). We conclude that precisely the same
danger is present when the jury is informed of the results of numerous other
trials in which a central witness for the government has participated. The jury
will unavoidably be tempted to accept the opinion of previous juries rather than
exercise its own independent judgment.
23
Agent Sarron's testimony in the present case created a great danger that the jury
would simply credit O'Relly's testimony and find in favor of the government
because many other juries had done so in the past. This would clearly be an
improper basis for the verdict, and we conclude that the danger of unfair
prejudice from this testimony substantially outweighed the testimony's
probative value. It should, therefore, have been excluded under Fed.R.Evid.
403.
24
The government argues that the prejudice here is slight and that any error was
harmless. We cannot agree. O'Relly was the government's first witness. He
described his contact with Sorondo and specifically contradicted the defense's
description of O'Relly's pressure tactics. Sorondo testified that he initially told
O'Relly that he was not interested in selling cocaine, but O'Relly testified that
that was not true. Sorondo testified that O'Relly agreed to leave him alone if he
would perform just one cocaine transaction, but O'Relly denied this. Mrs.
Sorondo testified that O'Relly had spoken to her on a number of occasions
about her husband getting involved in drug transactions, but O'Relly denied that
any such conversations occurred. The record clearly shows that O'Relly's
testimony supported the government's position on the critical issue of
entrapment. Given the significance of O'Relly's testimony, it was plain error to
allow testimony by agent Sarron which may have unfairly and strongly
bolstered O'Relly's credibility in the eyes of the jury. Based upon this plain
error in the trial, appellant's conviction must be reversed.1
III. CONCLUSION
25
26
REVERSED.
Honorable Horace T. Ward U.S. District Judge for the Northern District of
Georgia sitting by designation
Given our resolution of the case, we need not address appellant's additional
claim that the government violated the Jencks Act, 18 U.S.C. Sec. 3500