United States v. Bueno-Sierra

United States Court of Appeals,

Eleventh Circuit.

No. 95-4243

Non-Argument Calendar.

UNITED STATES of America, Plaintiff-Appellee,

v.

Jorge Eliecer BUENO-SIERRA; Carlos Enrique Sanchez; Wilmer

Marin-Garcia, Defendants-Appellants.

Nov. 12, 1996.

Appeals from the United States District Court for the Southern

District of Florida. (No. 93-567-CR-DTKH), Daniel T.K. Hurley,

Judge.

Before HATCHETT, Chief Judge, TJOFLAT and KRAVITCH, Circuit Judges.

PER CURIAM:

Jorge Bueno-Sierra, Carlos Sanchez, and Wilmer Marin-Garcia

raise a host of challenges to their convictions on numerous

drug-related offenses.1 We AFFIRM.

I. FACTS

In September, 1993, the U.S. Customs Service targeted Bueno-

Sierra as a potential drug figure. Reliader Heredia, a government

informant cooperating with officials as part of a plea bargain in

another case, met Bueno-Sierra and, from his demeanor, surmised

that he was in the drug trade.

At the direction of the Customs Service, Heredia arranged a

1

The government charged appellants with four counts:

conspiracy to import cocaine, 21 U.S.C. § 963; conspiracy to

possess cocaine with the intent to distribute, 21 U.S.C. § 846;

importation of cocaine, 21 U.S.C. §§ 952(a), 960(a)(1), (b); and

possession of cocaine with intent to distribute, 21 U.S.C. §

841(a)(1). A jury found Bueno-Sierra and Sanchez guilty on all

counts, and found Marin-Garcia on all counts except the

possession charge.

"formal introduction" with Bueno-Sierra. Heredia suggested that he

was a drug dealer interested in bringing cocaine to the United

States and Bueno-Sierra sought Heredia's help in smuggling Bueno-

Sierra's cocaine from Columbia. Heredia also met Marin-Garcia, who

was to arrange the Columbian end of the deal. Marin-Garcia would

tell Heredia where to locate the drug shipment. Heredia would then

offload the drugs, supposedly with the help of Heredia's contacts

among the authorities at the Port of Miami.

The conspirators held several subsequent meetings, ordinarily

attended by Heredia, Sanchez, and Bueno-Sierra and his wife, Marta

Rojas.2 Heredia wore a transmitter to record many of these

meetings. Bueno-Sierra and Marin-Garcia informed the conspirators

that the drugs would be transported aboard the vessel Lontue and

described precisely the location and appearance of both the

container and the boxes within the container.

On November 20, Customs opened the identified container from

the Lontue and recovered sixteen boxes of cocaine. Four days

later, Bueno-Sierra and Sanchez waited for word from Heredia while

Heredia took possession of the drugs from Customs. Sanchez and

Bueno-Sierra, together with Hernan Diego Garcia,3 then met Heredia

4

and took the drugs to Higinio Cueli's house and unloaded and

repackaged the cocaine. Sanchez and Bueno-Sierra were arrested as

2

Rojas was charged along with appellants, but remains at

large.

3

Garcia pled guilty in this case. He is not a party to the

instant appeal.

4

Bueno-Sierra promised to pay Cueli as much as $10,000 for

the use of his home for an hour. Cueli later pled guilty in this

case and testified against his compatriots.

they left and Marin-Garcia was arrested subsequently. Customs

seized the drugs at Cueli's home.

II. ISSUES ON APPEAL

Appellants allege the following: (1) that the trial court

erred in a number of evidentiary rulings; (2) that the trial court

improperly overruled defense objections to the composition of the

jury; (3) that Bueno-Sierra was denied effective assistance of

counsel; (4) that the government's delayed disclosure of certain

evidence and failure to correct certain erroneous testimony

prejudiced the defense; (5) that the prosecutor made improper

comments during closing argument justifying reversal; and (6) that

appellants' role in the crimes do not justify the sentences

imposed.5

A. Admissibility of Berth Request Form

As evidence that appellants actually imported cocaine into

the United States from a place outside the country, see 21 U.S.C.

§ 952(a), the government introduced the Lontue's berth request

form, a document that assigns incoming vessels dock space and notes

arrivals and departures of particular ships. The form was prepared

by the Lontue's shipping company, yet it was introduced through

John Perez, the Assistant Chief of Port Operations for Miami, whose

office maintains such forms on file.

At trial, the defense objected to the use of the berth request

as hearsay outside the scope of the business records exception.

5

We hold that appellants' evidentiary claims other than

those discussed in section III.A., infra, lack merit. Similarly,

we find appellants' jury selection, assistance of counsel, and

prosecutorial misconduct claims meritless and need no further

discussion. See 11th Cir.R. 36-1.

See Fed.R.Evid. 803(6).6 Appellants press this issue here,

alleging that because the shipping companies produced the form and

the Port of Miami only kept it on file without any independent

verification of its truth, the business records exception to the

hearsay rule is inapposite. They contend that because the

custodian of the records had no knowledge of who prepared them, the

requirements of Rule 803(6) are not satisfied.7 We disagree.

The touchstone of admissibility under the business records

exception to the hearsay rule is reliability, and a trial judge has

broad discretion to determine the admissibility of such evidence.

United States v. Veytia-Bravo, 603 F.2d 1187, 1189 (5th Cir.1979),

cert. denied, 444 U.S. 1024, 100 S.Ct. 686, 62 L.Ed.2d 658 (1980).8

This court has held that the proponent of a document ordinarily

6

The trial court admitted the document pursuant to this

court's decision in Baxter Healthcare Corp. v. Healthdyne, Inc.,

944 F.2d 1573 (11th Cir.1991). In that case, we held that

records of the kind at issue in the instant case were admissible

under Rule 803(6), but we later vacated the opinion when the

parties withdrew their appeal. Baxter Healthcare Corp. v.

Healthdyne, Inc., 956 F.2d 226 (11th Cir.1992).

7

Rule 803(6) provides an exception for:

A memorandum, report, record, or data compilation, in

any form, of acts, events, conditions, opinions, or

diagnoses, made at or near the time by, or from

information transmitted by, a person with knowledge, if

kept in the course of a regularly conducted business

activity, and if it was the regular practice of that

business activity to make the memorandum, report,

record, or data compilation, all as shown by the

custodian or other qualified witness, unless the source

of information or circumstances of preparation indicate

lack of trustworthiness. Fed.R.Evid. 803(6).

8

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th

Cir.1981) (en banc), this court adopted as binding precedent all

decisions of the former Fifth Circuit handed down prior to

October 1, 1981.

need not be the entity whose first-hand knowledge was the basis of

the facts sought to be proved. United States v. Atchley, 699 F.2d

1055, 1059 (11th Cir.1983).9 To satisfy Rule 803(6), however, the

proponent must establish that it was the business practice of the

recording entity to obtain such information from persons with

personal knowledge and the business practice of the proponent to

maintain the records produced by the recording entity.10 See Munoz

v. Strahm Farms, Inc., 69 F.3d 501, 503 (Fed.Cir.1995); Saks

Int'l, Inc. v. M/V "Export Champion", 817 F.2d 1011, 1013 (2d

Cir.1987).

Here, the government offered testimony sufficient to satisfy

the requirements for admissibility. Perez testified that berth

requests are maintained regularly in the Port's operations office,

and that ships' agents regularly submit such documents as a

prerequisite to obtaining a docking location. Perez further stated

that the ships' agents personally prepare the berth requests.

Applying the rule set out above, we conclude that the berth request

was properly admitted at trial.11

9

In Atchley, we held that telephone records made and

preserved in the regular course of business were properly

admitted without personal knowledge of the identity of the

preparer.

10

We note that Rule 803(6) does not eliminate double hearsay

problems. Rather, it commands that each link in the chain of

possession must satisfy the requirements of the business records

exception or some other exception to the hearsay rule. See 4

Weinstein's Evidence, 803(6)[04], at 803-210 to 803-212 (Jack B.

Weinstein et al. eds., 1996).

11

The Second Circuit has ruled the same way on parallel

facts. Saks Int'l Inc. v. M/V "Export Champion", 817 F.2d 1011,

1013 (2d Cir.1987) (where ship was loaded in Africa, persons

loading ship prepared a loading report, and report was maintained

by the ship's mate in the regular course of business, Rule 803(6)

B. Government Disclosures

Appellants next allege that the government's delayed

disclosure of certain materials and failure to correct certain

trial testimony necessitates reversal. Although we do not condone

the prosecutor's actions, the trial court's actions in the instant

case cured any alleged violation of the prosecutor's disclosure

duties.

1. Delayed Disclosure

The most significant of appellants' claims stems from the

fact that significant impeachment testimony against government

witness Heredia was not disclosed until trial had begun, and that

the berth request form was not disclosed until it was sought to be

introduced.12 On the seventh day of trial, the prosecution turned

over to the defense a number of documents which contained

information seriously inconsistent with Heredia's trial testimony.

Appellants allege that this overdue disclosure was improper, in

light of the prosecutor's disclosure duties under Brady v.

Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Brady requires the government to produce for the defense

impeachment evidence against government witnesses. Giglio v.

United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972);

United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d

permitted the report to be introduced through the ship's mate).

12

Appellants also claim that tapes and transcripts should

have been turned over earlier and that impeachment evidence

against witness Cueli was withheld. We find that, absent

evidence of prejudice to appellants, the fact that the tapes and

transcripts were available a week before trial does not warrant

reversal. Further, the government did turn over the information

sought regarding Cueli far in advance of trial.

481 (1985). Delayed disclosure may be grounds for reversal, "but

only if the defendant can show prejudice, e.g., the material came

so late that it could not be effectively used." United States v.

Beale, 921 F.2d 1412, 1426 (11th Cir.), cert. denied, 502 U.S. 829,

112 S.Ct. 100, 116 L.Ed.2d 71 (1991). In this case, however, such

prejudice was averted because the trial court recessed for the

remainder of the day and allowed additional cross-examination of

Heredia the next morning. Appellants' attorneys fully explored the

extent of Heredia's prior inconsistent testimony at that time. We

hold that, as a result of the trial court's remedial measures,

appellants were not prejudiced by the late disclosure.

Second, appellants claim that the late disclosure of the

berth request was a violation of both Federal Rule of Criminal

Procedure 16 and the court's standing discovery order. Assuming a

violation,13 we hold that no reversible error occurred because

appellants have shown no prejudice from the delay.

Late disclosure of evidence required to be turned over under

Rule 16 or a standing discovery order necessitates reversal only if

it violates a defendant's substantial rights. United States v.

Camargo-Vergara, 57 F.3d 993, 998 (11th Cir.1995). Substantial

prejudice results if a defendant is unduly surprised and lacks an

adequate opportunity to prepare a defense. Id. Here, the

defendants suffered no such prejudice because there was significant

13

The standing discovery order and the Rules contain

substantially similar language, requiring the prosecution to turn

over "documents ... which are within the possession, custody or

control of the government, and which are ... intended for use by

the government as evidence in chief at the trial...."

Fed.R.Crim.P. 16(a)(1)(C).

other evidence introduced at trial substantiating the government's

contention that appellants imported cocaine from Columbia to the

Port of Miami aboard the ship Lontue. Accordingly, their ability

to defend against the importation charge was not compromised by the

admission of the berth request. See United States v. Accetturo,

966 F.2d 631, 636 (11th Cir.1992), cert. denied, 506 U.S. 1082, 113

S.Ct. 1053, 122 L.Ed.2d 360 (1993).

2. Failure to Correct Testimony

Appellants claim that Heredia made several false statements

in the course of his testimony that the government failed to

correct. They correctly cite Napue v. Illinois, 360 U.S. 264, 79

S.Ct. 1173, 3 L.Ed.2d 1217 (1959), for the proposition that the

prosecutor must correct known falsehoods. Although the record is

unclear regarding whether the government indeed violated Napue,14

we hold that reversal is inappropriate on these facts. Reversible

error occurs only if a failure to correct results in material

prejudice such that there is any reasonable likelihood that the

false testimony would affect the jury's judgment. United States v.

Alzate, 47 F.3d 1103, 1110 (11th Cir.1995). Defense counsel fully

explored every inconsistency alleged by the appellants when the

trial judge re-opened cross-examination. We hold, therefore, that

the jury's judgment would not have been affected.

C. Sentencing Adjustments for Role in Offense

Each appellant challenges his Sentencing Guidelines range, on

14

A government witness testified that Heredia told him that

he made over $4 million in the drug trade, but Heredia testified

to $2 million. The record does not demonstrate conclusively

whether the prosecutor was aware of this or any other

inconsistencies.

the ground that he had a lesser role in the conspiracy than found

by the court. We review a trial court's factual determinations

relative to sentencing for clear error. United States v. Asseff,

917 F.2d 502, 507 (11th Cir.1990).

Bueno-Sierra received a four-level enhancement in his

sentence range as an organizer or leader of the conspiracy. See

United States Sentencing Commission, Guidelines Manual, § 3B1.1(a)

(Nov. 1995) [hereinafter Guidelines ]. Based on a review of the

record and noting Bueno-Sierra's extensive role in coordinating

every aspect of this transaction, we hold that the trial court's

decision was not clearly erroneous.

Sanchez argues that he is entitled to a reduction for being

a minor or minimal participant, but his conduct belies this claim.

He participated in most of the meetings regarding the scheme and

transported and unloaded the cocaine once it arrived in the United

States. We therefore conclude that the sentencing determination

has ample support in the record and is not clearly erroneous.

Finally, Marin-Garcia claims error in his enhancement for

being an organizer, manager, or supervisor. See Guidelines §

3B1.1(c). The record evidence demonstrates, however, that Marin-

Garcia coordinated the entire Columbian end of this conspiracy,

informed the parties of the location of the cocaine aboard the

ship, and provided replacement container seals to divert

authorities' suspicion, among other things. Thus, the trial court

did not clearly err in Marin-Garcia's sentence.

III. CONCLUSION

For the foregoing reasons, appellants' convictions and

sentences are AFFIRMED.