United States v. Luis Edwardo-Franco, Rocio Gallego, A/K/A "Mariela Florez", Jorge Lopez and Sergio Castro-Munoz, 885 F.2d 1002, 2d Cir. (1989)
United States v. Luis Edwardo-Franco, Rocio Gallego, A/K/A "Mariela Florez", Jorge Lopez and Sergio Castro-Munoz, 885 F.2d 1002, 2d Cir. (1989)
2d 1002
Following a jury trial in the United States District Court for the Eastern District
of New York, Luis Edwardo-Franco, Rocio Gallego, Jorge Lopez and Sergio
Castro-Munoz were convicted of conspiracy to possess cocaine with intent to
Around the middle of July 1987, the New York Drug Task Force, a joint drug
enforcement effort of federal, state and city police, began surveillance of a
rented house on Birchwood Park Drive in Jericho, New York. The record does
not disclose who the record tenant was or who was occupying the house at that
time. Edwardo-Franco, Gallego and Castro-Munoz moved into the house on
July 23, 1987 under circumstances to be discussed hereafter.
Other agents, who were informed by radio of Lopez's arrest, stopped and
arrested Edwardo-Franco and Gallego. Agents then obtained a warrant to
search the Birchwood Park Drive house. In the course of the search, they found
fifteen kilograms of cocaine in a basement room closet, a number of weapons,
and several incriminating notebooks and documents. They also met and
arrested Castro-Munoz who was living in the house.
The four defendants, all natives of Colombia, were convicted under Count One
of the indictment of conspiracy to possess with intent to distribute the fifteen
kilograms of cocaine found in the basement. (21 U.S.C. Sec. 841(b)(1)(A)(ii)
(II) and 21 U.S.C. Sec. 846). Edwardo-Franco, Gallego and Castro-Munoz were
convicted under Count Two of knowingly and intentionally possessing with
intent to distribute these same drugs. (21 U.S.C. Sec. 841(b)(1)(A)(ii)(II)). All
four defendants were convicted under Count Three of knowingly and
intentionally possessing with intent to distribute the kilogram of cocaine taken
from Lopez. (21 U.S.C. Sec. 841(b)(1)(B)(ii)(II)). Castro-Munoz was convicted
under Count Four of knowingly using and carrying firearms during and in
relation to a drug trafficking crime. (18 U.S.C. Sec. 924(c)(1) and (c)(2)).
6
Edwardo-Franco and Gallego appeared before the district court at the same
time for sentencing. In his allocution on their behalf, their counsel argued that
they presented no danger to the community and in any event would be deported
to Colombia at the end of their prison term. The district court then made the
following remarks about Colombians:
They don't have too much regard for Judges. They only killed 32 Chief Judges
in that nation. Their regard for the judicial system, the men who run their laws,
I'm glad I'm in America. That's why I pledge allegiance to the flag. My mother
and father came from Italy.
Your Honor, I've got these people, I have seen them numerous times. They are
not of the type of people, I don't feel, would go out and rob a 7-11 or do
anything illegal, truly. Most of the people that come to this country are in it as
immigrants, suffer a tremendous pressure moneywise, et cetera.
10
THE COURT: Then they should have stayed where they were. Nobody told
them to come here. I'm one of the fellows who makes United States citizens.
Nobody tells them to come and get involved in cocaine. Don't give me that
theory. My father came over with $3 in his pocket. He has a Federal Judge as a
son.
11
12
13
I ask for pardon for whatever error I committed. I ask, request that the
sentencing be done, as for my person, not for my nationality. I have and I ask
you for leniency. I spent five months and my life has been very, very harsh
indeed.
14
The district court then sentenced both of these first time offenders to concurrent
twenty-year terms on Counts One and Two and a consecutive ten-year term on
Count Three for a total of thirty years imprisonment, to be followed by a
lifetime special parole term of supervised release.
15
The Supreme Court and Courts of Appeals, including this Court, have
emphasized repeatedly that not only must justice be done, it also must appear to
be done. In the oft-quoted statement of Justice Frankfurter, "justice must satisfy
the appearance of justice." Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11,
13, 99 L.Ed. 11 (1954). See also Liljeberg v. Health Services Acquisition
Corp., 486 U.S. 847, 108 S.Ct. 2194, 2204, 100 L.Ed.2d 855 (1988); Marshall
v. Jerrico, Inc., 446 U.S. 238, 242-43, 100 S.Ct. 1610, 1613, 64 L.Ed.2d 182
(1980); Mayberry v. Pennsylvania, 400 U.S. 455, 465, 91 S.Ct. 499, 504-05, 27
L.Ed.2d 532 (1971); In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99
L.Ed. 942 (1955); United States v. Diaz, 797 F.2d 99, 100 (2d Cir.1986), cert.
denied, --- U.S. ----, 109 S.Ct. 57, 102 L.Ed.2d 35 (1988). In recent years, these
same Courts have adhered steadfastly to the proposition that race and
nationality should play no adverse role in the administration of justice. See,
e.g., Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986);
Turner v. Murray, 476 U.S. 28, 35-38, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986);
Rose v. Clark, 478 U.S. 570, 587, 106 S.Ct. 3101, 3110, 92 L.Ed.2d 460 (1986)
(Stevens, J., concurring); Roman v. Abrams, 822 F.2d 214, 227-28 (2d
Cir.1987), cert. denied, --- U.S. ----, 109 S.Ct. 1311, 103 L.Ed.2d 580 (1989).
16
We believe that Gallego's plaintive request that she be sentenced "as for my
person, not for my nationality", mirrors what would be the objective reaction of
anyone familiar with the above-quoted comments of the district court, namely
that ethnic prejudice somehow had infected the judicial process in the instant
case. Our conclusion in this regard should not be interpreted to mean that the
district judge in fact was guilty of such prejudice; it means that he appeared to
be. In short, the district court's conduct did not "satisfy the appearance of
justice."
17
It follows that the severe sentences meted out to Edwardo-Franco and Gallego
cannot stand. Moreover, the district court's comments infected the sentences
given Lopez and Castro-Munoz, who also were Colombians. Lopez was
sentenced to two concurrent fifteen-year terms to be followed by a lifetime term
of special release and Castro-Munoz was sentenced to three concurrent fifteenyear terms on the drug charges, a five-year consecutive sentence on the
firearms charge, and a lifetime term of supervised release. These men also were
first time offenders.
18
At first blush, it would appear that a simple remand for resentencing would be
a sufficient remedy for the district court's unfortunate choice of language.
However, appellants contend that they were treated unfairly throughout the
trial. Ordinarily, rulings by a trial court that are not prohibited by statute or the
Constitution are weighed under an abuse of discretion standard. See, e.g.,
Hamling v. United States, 418 U.S. 87, 124-25, 94 S.Ct. 2887, 2911, 41
L.Ed.2d 590 (1974); United States v. Wilson, 750 F.2d 7, 9 (2d Cir.1984), cert.
denied, 479 U.S. 839, 107 S.Ct. 143, 93 L.Ed.2d 85 (1986); United States v.
Albergo, 539 F.2d 860, 863 (2d Cir.), cert. denied, 429 U.S. 1000, 97 S.Ct. 529,
50 L.Ed.2d 611 (1976). A party does not demonstrate judicial bias simply by
showing that a majority of the trial judge's rulings were against him and that
there were occasional flare-ups between his attorney and the court. In re
International Business Machines Corp., 618 F.2d 923, 927-32 (2d Cir.1980).
However, where, as here, there is an indication of extra-judicial bias, each
questionable adverse ruling by the trial judge tends to magnify the appearance
of injustice. As discussed in the paragraphs that follow, there were a number of
such rulings in the instant case.
EDWARDO-FRANCO and GALLEGO
19
At the time of trial, Edwardo-Franco and Gallego had been residents of the
United States for only two years. Because neither of them was conversant in
English, they were questioned and spoke through a Spanish interpreter. Indeed,
their only means of communication with their own attorney was through an
interpreter. Perhaps, because they lived together in a common-law relationship,
they retained the same lawyer to represent them. Upon learning of this, the
district court was required to "promptly inquire with respect to such joint
representation and [to] personally advise each defendant of the right to the
effective assistance of counsel, including separate representation."
Fed.R.Crim.P. 44(c). In United States v. Curcio, 680 F.2d 881, 888-91 (2d
Cir.1982), we suggested the form that the district court's inquiries should take,
and we summarized those suggestions in United States v. Iorizzo, 786 F.2d 52,
59 (2d Cir.1986), as follows:
20 trial court should: (i) advise the defendant of the dangers arising from the
[T]he
particular conflict; (ii) determine through questions that are likely to be answered in
narrative form whether the defendant understands those risks and freely chooses to
run them; and (iii) give the defendant time to digest and contemplate the risks after
encouraging him or her to seek advice from independent counsel.
21
to whether they wished to continue with one lawyer, instead of giving them
time to reflect on the matter and encouraging them to seek advice from
independent counsel.
22
Over a month prior to the time the district court made its inadequate inquiry
concerning waiver of joint representation, the AUSA wrote the district court
expressing her concern that the interests of Edwardo-Franco and Gallego "may
diverge in virtually every stage of the proceeding" and urging the court to
utilize the procedures outlined in Iorizzo, supra, to determine whether they
made a knowing and intelligent waiver of their right to decline dual
representation. During the course of the abbreviated colloquy between
defendants and the court, the AUSA also suggested unsuccessfully that the
district court adhere more closely to the procedures outlined in Curcio, supra.
The suggestions of the AUSA should have been followed. They were not.
Accordingly, we hold that Edwardo-Franco and Gallego did not knowingly and
willingly waive their right to be represented by separate counsel having no
conflict of interest. See Colon v. Fogg, 603 F.2d 403, 406-08 (2d Cir.1979).
23
Of course, this fact, standing alone, does not automatically entitle these two
defendants to a new trial. To justify a retrial, there must be a showing of some
specific prejudice resulting from the joint representation. United States v.
Carrigan, 543 F.2d 1053, 1055-57 (2d Cir.1976). The absence of proper inquiry
on the issue of waiver did, however, shift from the defendants to the
Government the burden of proof on the issue of prejudice. Id. at 1056; see
Holloway v. Arkansas, 435 U.S. 475, 495, 98 S.Ct. 1173, 1184, 55 L.Ed.2d 426
(1978) (Powell, J., dissenting).
24
26
27
Edwardo-Franco testified that on August 4, 1987, he and Gallego left the house
in the morning, he to give several job estimates and she to do cleaning work.
When they returned home, they found a shopping bag in the den with a note
from Belascasas asking Edwardo-Franco to deliver the bag to an address in
Manhattan. Edwardo-Franco and Gallego already had planned to drive to New
Jersey that afternoon to collect a rental security deposit from their former
landlady and to drop off a suit for alterations. They also had promised Lopez,
with whom Edwardo-Franco played soccer, a ride to New Jersey. EdwardoFranco put the shopping bag in the car without examining its contents. Gallego
brought a dark suit bag from the house and placed that in the car. En route to
New York and New Jersey, Edwardo-Franco and Gallego picked up Lopez.
When they arrived at 161st Street in Manhattan, Edwardo-Franco asked Lopez
to deliver the bag, because Edwardo-Franco didn't want Gallego to leave the
car in what was an unsavory neighborhood. It was while Lopez was in the
process of making this delivery that he was arrested.
28
This was far from an air-tight defense. However, the defendants were entitled to
a fair opportunity to present it. They were hampered in this respect by
questionable rulings and comments of the district court. For example, to support
Edwardo-Franco's testimony concerning his residence in West New York and
his entitlement to the return of the rental deposit, he called his former landlady
as a witness. When Edwardo-Franco and Gallego's counsel attempted to
question the landlady about their lease and deposit, the AUSA successfully
objected on the unique ground that counsel was "using this witness to confirm
the defendant's story, which is totally inappropriate." (emphasis supplied). This
argument should have been rejected. In view of the Government's strong attack
on the credibility of the defendants, the testimony of their former landlady was
admissible to strengthen the probability that they were telling the truth about
their automobile trip on August 4, 1987. See Hasselstrom v. McKusick, 324
F.2d 1013, 1018 & n. 7 (C.C.P.A.1963); see also United States v. Eliano, 522
F.2d 201, 202 (2d Cir.1975); United States v. McIntire, 461 F.2d 1092 (5th
Cir.1972); United States v. Howell, 447 F.2d 1114, 1118 (2d Cir.1971); United
States v. Del Purgatorio, 411 F.2d 84, 86 (2d Cir.1969). The Government now
argues that, "[t]he testimony was precluded not because Edwardo-Franco
testified first and the court would not permit corroboration, as Florez would
have the Court believe (Florez's Brief at 34), but because Edwardo-Franco's
evidence showed that Dominguez's would be irrelevant." (Government's Brief
at 55). It would be strange indeed if, while writing on the issue of unfairness in
the district court, we accepted this argument by the Government as factually
correct. The district court sustained the AUSA's objection on precisely the
ground advanced by the AUSA, saying of Edwardo-Franco's former landlady,
"She can't be a corroborative witness. She cannot be."
29
When defense counsel grimaced at the district court's unusual ruling, he was
held in contempt of court. Although the district court excused the jury before
this holding was made, the jury would have been most obtuse if it did not
realize what was taking place:
30
THE COURT: I don't think you learned your lesson, Mr. Counselor ...
31
Step out, please. I know how to handle this all by myself. I don't need help from
the jury.
32
The district court precluded Edwardo-Franco from testifying about what the
Government describes as "irrelevant details", i.e., "background information
about his employment, former residences and jobs." This evidence was
relevant. Big-time drug dealers ordinarily do not live in one-room apartments
and do cleaning and drywall taping for a living. The Government also argues
that the district court correctly sustained its objection to Edwardo-Franco's
testimony about the inducements offered him by Belascasas to move into the
Birchwood Park Drive house, on the ground that this evidence was hearsay.
The evidence went solely to Edwardo-Franco's state of mind; it was not
hearsay. Moreover, despite the district court's comments to the contrary, it was
"material". There is a puzzling gap in the Government's proof concerning the
Birchwood Park Drive house. The Government proved that it was rented but did
not identify the tenant. Defendants testified that Belascasas was the tenant. The
Government argued in summation that "Mr. Belascasas is a figment of these
defendants' imagination. And every defendant who testified about Belascasas
was making that story up." Assuming that this argument was not one of
questionable propriety, see United States v. Modica, 663 F.2d 1173, 1178-79
(2d Cir.1981), cert. denied, 456 U.S. 989, 102 S.Ct. 2269, 73 L.Ed.2d 1284
(1982), the very fact that it was made emphasizes the importance of the role
allegedly played by Belascasas in this entire matter. Someone invited or
permitted Edwardo-Franco and Gallego to live in the Birchwood Park Drive
house. If, as the Government "suggests", it wasn't Belascasas, the picture
presented to the jury was missing an important piece. Since, for reasons known
only to itself, the Government did not prove that someone other than Belascasas
was the tenant, it is in a poor position to argue that proof of the invitation
extended defendants by Belascasas was not material.
33
Defendants contended that because the cocaine seized from Lopez was
wrapped inside several bags, it would not be visible to one simply looking in
the shopping bag which Lopez carried. Although the DEA witnesses concurred,
their testimony differed as to how many wrappings concealed the drug's
presence. When counsel for Edwardo-Franco and Gallego attempted to clarify
exactly how the drug was wrapped, the district court sua sponte precluded him
from doing so. The announced basis for this peculiar ruling was that, since the
shopping bag was taken from Lopez, only his attorney had the right to crossexamine the agents on this point. When counsel for Edwardo-Franco and
Gallego asked the court whether this precluded him from conducting an
examination on the same point, the court replied:
The lawyer thus precluded was the one twice held in contempt by the district
35
The lawyer thus precluded was the one twice held in contempt by the district
court.
36
37
38
Counsel for Edwardo-Franco and Gallego complains that the district court
unfairly limited his cross-examination of Tytell. Of course, the scope of crossexamination is largely within the discretion of the trial court. However, the
court must be careful not to give an impression that its rulings are biased in any
way or that it is vouching for the credibility or expertise of the witness. When
defense counsel asked Tytell if he received several thousand dollars each time
he testified for the Government, the court interjected the statement:
The court's stated position was that what Tytell earned in testifying for the
Government in prior cases was immaterial:
That doesn't show bias here. Maybe where you come from it shows bias.
41
42
The district court may be right in holding that the testimony doesn't show bias;
however, it does show a possibility, or perhaps even a probability, of bias. We
find substantial merit in Judge Engel's statement in United States v. Leja, 568
F.2d 493, 499 (6th Cir.1977), that evidence of what a witness received from the
Government for past services and might therefore expect in the future is "highly
relevant to the question of his potential bias and interest."
43
At another point, when defense counsel attempted to show that two handwriting
experts could differ in their opinions, the trial transcript reads as follows:
44
Q. You can have two experts looking at the same document and you say yes
this is him or no this isn't him and the other guy would say the opposite?
45
46
I suggest, counsel, you refrain from making what you know are improper
statements. If you didn't understand that you've learned it now. You've already
been advised of that.
Although the district judge subsequently rescinded the two $1,000 fines that he
levied on counsel, and we are not in a position to pass upon the propriety of the
contempt orders, the fact remains that the judge substantially hampered the
impeaching efforts of defense counsel.
55
States v. Mazzilli, 848 F.2d 384, 388 (2d Cir.1988); that it "must exercise
caution to maintain an appearance of impartiality", United States v. Victoria,
837 F.2d 50, 54 (2d Cir.1988). Repeating what we have said, supra, that
adverse rulings, standing alone, furnish weak support for a claim of bias, we
conclude that there were enough questionable rulings and incidents in the
instant case to support appellants' claim of apparent bias and unfairness.
Accordingly, in the interest of justice, we hold that Edwardo-Franco and
Gallego are entitled to a new trial.
CASTRO-MUNOZ
56
LOPEZ
57
If, as the indictment alleges, there were one or two conspiracies, it is the
Government's contention that Edwardo-Franco and Gallego were the principal
members of both conspiracies. Holding, as we do, that these two defendants
must be retried because of unfairness in the trial, we find it difficult to hold that
the verdict against Lopez was not tainted to some extent by the same
unfairness. If, on remand, the jury should accept the testimony of EdwardoFranco and Gallego that they did not know the shopping bag which EdwardoFranco asked Lopez to deliver contained cocaine, the jury well might make the
same finding with regard to Lopez.
58
Lopez also argues that, insofar as the conspiracy charges are concerned, he is
entitled to the so-called "single transaction" defense. See United States v.
Aviles, 274 F.2d 179, 189-90 (2d Cir.), cert. denied, 362 U.S. 974, 80 S.Ct.
1058, 4 L.Ed.2d 1010 (1960); United States v. Stromberg, 268 F.2d 256, 267
(2d Cir.), cert. denied, 361 U.S. 863, 80 S.Ct. 124, 4 L.Ed.2d 102 (1959). A
determination as to whether the alleged conspiracies existed and whether the
single shopping bag delivery by Lopez made him a member of those
conspiracies, requires an analysis of both the nature of the alleged enterprise
and Lopez's relationship to it. United States v. Murray, 618 F.2d 892, 902-03
(2d Cir.1980). We conclude that Lopez, like Edwardo-Franco and Gallego, is
entitled to an untainted analysis.
59
ON REHEARING
PER CURIAM:
60
The Government's petition for rehearing simply reiterates the arguments made
in its brief on appeal. The exclusion of the testimony of Edwardo-Franco's
former landlady on the basis that "(s)he can't be a corraborative witness," Panel
op. at 1008, coupled with the preclusion of Edwardo-Franco's testimony as to
background information about himself and about the inducements to him to
move into the Birchwood Park Drive house, Panel op. at 1009, would alone
have warranted a reversal of his and Gallego's conviction. When coupled with
the other questionable rulings commented upon in our initial opinion, especially
in light of the remarkd made at sentencing, it is readily apparent that a retrial in
the interest of justice is necessary. We stand on the points made in the panel
opinion as to Castro-Munoz and Lopez.
61
As Justice Jackson once wrote, "There is, of course, strong temptation to relax
rigid standards when it seems the only way to sustain convictions of evildoers."
Krulewitch v. United States, 336 U.S. 440, 457, 69 S.Ct. 716, 725, 93 L.Ed.
790