Petition for Writ of Certiorari — Enriquez v. United States
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Supreme Court, U.3.
£ee 2.
941095 DEC 20 iv%
No. OFFICE OF THE CLERK
In The
Supreme Court of the United States
October Term, 1994
+
NELDA ENRIQUEZ,
Petitioner,
UNITED STATES OF AMERICA,
Respondent.
Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Sixth Circuit
PETITION FOR WRIT OF CERTIORARI
CuHaries W. B. FEts
Counsel of Record
Post Office Box 1126
Knoxville, TN 37901-1126
(615) 637-0661
Counsel for Nelda Enriquez
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
TE ae ee». Sra
QUESTION PRESENTED
DOES THE CONFRONTATION CLAUSE OF THE
SIXTH AMENDMENT AS DEFINED BY BRUTON V.
UNITED STATES AND CRUZ V. NEW YORK EXCLUDE
ADMISSION OF INCRIMINATING STATEMENTS MADE
BY A NONTESTIFYING CODEFENDANT WHOSE
STATEMENTS ARE PART OF SURREPTITIOUSLY
RECORDED CONVERSATIONS BETWEEN THE CO-
DEFENDANT AND THE DEFENDANT.
il
TABLE OF CONTENTS
Page
CUISSTAIS TOMMPTEGN s cvicncickepceretsivenecai i
py) Fe Ree. TTT TT TTT Teer il
TAREE CP ALEC G NM 655 hands eee ceC haw keds iv
COPTITLIINGS TRG Ie oc vnc cKanendiacieteirateseeis ]
REG BORNE 5 cin neve iabedancs cen ehe dae enears 2
CONSTITUTIONAL PROVISIONS INVOLVED...... 2
STATEMENT OO} Fens Seeks dvccensccetsvecexss 3
pe: ere er rr ey ry er re 6
THE INCRIMINATING STATEMENTS OF THE
NONTESTIFYING CODEFENDANT SHOULD
HAVE BEEN EXCLUDED FROM EVIDENCE
BECAUSE THE CODEFENDANT WAS NOT PRE-
SENT FOR CROSS EXAMINATION AND
BECAUSE THE JURY SHOULD NOT HAVE BEEN
EXPECTED TO FOLLOW THE TRIAL COURT’S
INSTRUCTION TO DISREGARD HIS STATE-
MENTS AS FACTUAL EVIDENCE AGAINST THE
LIE RIUAMEGS 0 occccccuacdaspessucssuuieeesedarnss 6
A. The Confrontation Clause As Defined By Bruton
v. United States And Cruz v. New York Exclude
Admission Of Incriminating Statements Made By
A Nontestifying Codefendant ................. 6
B. The Circuit Courts Have Admitted Similar Evi-
dence In The Past But Have Never Determined
The Applicability Of Bruton And Cruz To The
Incriminating Statements Of A Nontestifying
Comeienet, . « isssiacientbcckassusesteee 11
COUNCLARIIIN 6 sc sstccwnsyesnuéegecusdaeaseeeeeens 14
Nene
iii
TABLE OF CONTENTS - Continued
Page
APPENDIX
Order of the Sixth Circuit Court of Appeals on the
Speedy Trial Issue, dated January 24, 1994....... la
Opinion of the Sixth Circuit Court of Appeals, dated
EE Es ob kes We aces beau paces kvadeveansi 5a
Order on Petition to Rehear, dated September 22,
NR ee Pct es ge, fates ak as 26a
Excerpts from Trial Transcripts..................... 27a
iV
TABLE OF AUTHORITIES
Page
I. Cases
Bruton v. United States, 391 U.S. 123 (1968)......... passim
California v. Green, 399 U.S. 149 (1970) ............... 7
Cruz v. New York, 481 U.S. 186 (1987) ........... passim
Krulewitch v. United States, 336 U.S. 440 (1949) ...... 13
Parker v. Randolph, 442 U.S. 62 (1979) ................ 7
People v. Aranda, 407 P.2d 265 (Cal. Supr. Ct. 1965) ..... y
Fointer v. Texas, 360 US. GO C3965) 2... cece ccc ceena. 6
Richardson v. Marsh, 481 U.S. 200 (1987)......... passim
Simmons v. South Carolina, 512 U.S. __, 129
ee Be oe ee: | a eee 7
Tennessee v. Street, 471 U.S. 409 (1985)................ 7
United States v. Abrahamson, 568 F.2d 604 (8th Cir.
5, . RPE eel gamer pea rey tT ane eatery ee, TAP 12
United States v. Davis, 890 F.2d 1373 (7th Cir. 1989) .... 11
United States v. Gutierrez-Chavez, 842 F.2d 77 (5th
Ry < dicikad xGaneN ees bad ate vou momeens 6 12
United States v. Jordan, 810 F.2d 262 (D.C. Cir. 1987) .... 11
United States v. Lemonakis, 485 F.2d 941 (D.C. Cir.
United States v. McDowell, 918 F.2d 1004 (1st Cir.
TABLE OF AUTHORITIES — Continued
United States v. Murray, 618 F.2d 892 (2nd Cir.
CO, ook hc ee ee 12
United States v. Price, 792 F.2d 994 (11th Cir. 1986) .... 12
United States v. Stelten, 867 F.2d 453 (8th Cir. 1988) .... 11
United States v. Whitman, 771 F.2d 1348 (9th Cir.
PO 65 66 R0T 5 AE ae einen 12
United States v. Williams, 604 F.2d 1102 (8th Cir.
SO sis fens ce ee ee 11
II]. STATUTE
EO Se & Ce hh oa 8 os a ca eee 2
II]. CONSTITUTIONAL PROVISION
U.S. Constitution, Amendment VI............... passim
sarap
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In The
Supreme Court of the United States
October Term, 1994
a
NELDA ENRIQUEZ,
Petitioner,
UNITED STATES OF AMERICA,
Respondent.
+
Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Sixth Circuit
o
PETITION FOR WRIT OF CERTIORARI
¢
Petitioner Nelda Enriquez respectfully prays that a
writ of certiorari issue to review the opinion of the Court
of Appeals for the Sixth Circuit entered August 23, 1994,
and the denial of the petition to rehear that was entered
on September 22, 1994.
OPINIONS BELOW
The Order of the Sixth Circuit Court of Appeals on
the Speedy Trial issue, dated January 24, 1994, is
reprinted in the appendix at la - 4a.
The opinion of the Sixth Circuit Court of Appeals,
dated August 23, 1994, is reprinted in the appendix at
5a-25a.
The Order of the Sixth Circuit Court of Appeals
denying the petition for hearing, dated September 22,
1994, is reprinted in the appendix at 26a.
S
JURISDICTION
The opinion of the Sixth Circuit was entered on
August 23, 1994. The petition to rehear was denied in an
order dated September 22, 1994. The jurisdiction of this
Court is invoked under 28 U.S.C. § 1254(1).
+
CONSTITUTIONAL PROVISIONS INVOLVED
U.S. Constitution, Amendment VI.
In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an impartial jury
of the state and district wherein the crime shall have been
committed, which district shall have been previously
ascertained by law, and to be informed of the nature and
cause of the accusation; to be confronted with the wit-
nesses against him; to have compulsory process for
obtaining witnesses in his favor, and to have the assis-
tance of counsel for his defense.
RARER MRS
are
STATEMENT OF THE CASE
Petitioner Nelda Enriquez was convicted in federal
district court of conspiring to distribute and aiding and
abetting the distribution of 479 grams of cocaine after a
jury was allowed to listen to tapes containing the incrimi-
nating statements of a nontestifying male codefendant
who surreptitiously recorded conversations with her after
the charged conspiracy had terminated.
As the jury listened to the taped conversations, they
heard the nontestifying codefendant make statements to
the effect (1) that the defendant had been involved in
drugs in the past, (2) that she was owed a large sum of
money by the.codefendant, (3) that she had been told
about the failure of other codefendants to return with his
money, and (4) that he was attempting to engage her in
future drug transactions!.
All of the conversations between the nontestifying
codefendant and the defendant took place between July 2,
1992 and July 13, 1992, well after the charged conspiracy
terminated on June 10, 1992.
The Government moved to introduce the tapes
through an F.B.I. agent rather than through the codefen-
dant because the codefendant fled and was not present at
trial.2 Counsel objected to the admission of the tapes
1 Complete transcripts of the five conversations the jury
was allowed to hear are reprinted in the appendix of this peti-
tion. The key statements by the nontestifying codefendant have
been italicized.
2 There was no evidence of any kind that the female defen-
dant was responsible for this absence.
through the agent on the basis that allowing the jury to
hear the codefendant’s portions of the conversations
without him present for cross examination violated Ms.
Enriquez’s Sixth Amendment right to confront him. Fol-
lowing a hearing out of the presence of the jury, the trial
court found the tapes admissible and said:
I will admit all the tapes because the voice of the
defendant was recognized by this witness [the
agent]. When the tapes are played, I will give
instructions that the [absent codefendant]
Dadinis part of the conversation is not admis-
sible for the truth of the contents therein, but
only to show the context of the answers. I will
give that on each occasion, not on each occasion,
maybe, but regularly throughout the trial. I find
that the tapes are admissible.
When the time came for the tapes to be played for the
jury, the trial court instructed the jury to rely on the
absent codefendant’s comments in order to make sense of
the defendant’s responses but to disregard his statements
as factual evidence:
Since [the absent codefendant] Dadinis is not
here, as far as his wording on the tape, it is
hearsay and would normally not be admissible;
it might very well be the truth; it might be a
mistake; it might be a lie, or a subterfuge put on
the tape, but you are allowed to listen to the
tape for the sole purpose of putting the answers
in context. Do you understand that? You can’t
take his questions as truth, as proof of the truth
of the contents of those statements, but you take
them to provide the context of the answers. All
right. (emphasis added)
The tape recordings of these conversations were the
principal evidence that linked Ms. Enriquez in Texas to a
conspiracy to distribute cocaine in Tennessee.3
Ms. Enriquez appealed her conviction to the United
States Court of Appeals for the Sixth Circuit. The Sixth
Circuit affirmed her conviction with the following obser-
vation about the confrontation issue:
The district court explicitly charged the jury not
to take Dadinis’ statements as true and to con-
sider them only for the purpose of placing Ms.
Enriquez’s statements in context. Because Mr.
Dadinis’ statements were not offered for the
truth thereof, there is no hearsay or confronta-
tion problem.
Ms. Enriquez petitions the United States Supreme
Court to recognize that allowing the jury to listen to the
incriminating statements of the absent codefendant:
(1) constituted a violation of Ms. Enriquez’s
Sixth Amendment right to confront her accuser,
and
(2) carried such a risk that the violation could
not be remedied by instructing the jury to disre-
gard the absent codefendant’s statements as fac-
tual evidence.
* Aside from the tape recordings, the Government intro-
duced controverted testimony regarding a post-arrest interview
and items that were confiscated from her home 35 days after the
conspiracy ended. The items included 4.1 kilograms of cocaine,
40 pounds of marijuana, 2 bottles labeled valium, 2 pistols, 2
scales, and $1,387.
6
ARGUMENT
THE INCRIMINATING STATEMENTS OF THE NON-
TESTIFYING CODEFENDANT SHOULD HAVE BEEN
EXCLUDED FROM EVIDENCE BECAUSE THE CODE-
FENDANT WAS NOT PRESENT FOR CROSS EXAM-
INATIGN AND BECAUSE THE JURY SHOULD NOT
HAVE BEEN EXPECTED TO FOLLOW THE TRIAL
COURT’S INSTRUCTION TO DISREGARD HIS
STATEMENTS AS FACTUAL EVIDENCE AGAINST
THE DEFENDANT.
A.
The Confrontation Clause As Defined By Bruton v.
United States and Cruz v. New York Exclude Admission
Of Incriminating Statements Made By A Nontestifying
Codefendant.
Allowing the jury to listen to the incriminating state-
ments of the nontestifying codefendant violated Nelda
Enriquez’s rights under the Sixth Amendment because
the codefendant was not available for cross examination
and because the jury should not have been expected to
follow the trial court’s instruction to disregard his state-
ments as factual evidence against Ms. Enriquez.
“The Confrontation Clause of the Sixth Amendment
guarantees the right of a criminal defendant ‘to be con-
fronted with the witnesses against him.’” Cruz v. New
York, 481 U.S. 186, 189 (1987) “The right of confrontation
includes the right to cross-examine witnesses.” Richardson
v. Marsh, 481 U.S. 200, 206 (1987) (citing Pointer v. Texas,
380 U.S. 400, 406-407 (1965)).
Allowing the defendant to confront and cross-exam-
ine witnesses:
(1) insures that the witness will give his state-
ments under oath ~ thus impressing him with
the seriousness of the matter and guarding
against the lie by the possibility of a penalty for
perjury;
(2) forces the witness to submit to cross-exam-
ination, the ‘greatest legal engine ever invented
for the discovery of truth’; and
(3) permits the jury that is to decide the defen-
dant’s fate to observe the demeanor of the wit-
ness in making his statement, thus aiding the
jury in assessing his credibility.
California v. Green, 399 U.S. 149, 158 (1970) (quoting 5
Wigmore § 1367).
Courts often seek to avoid encroaching upon a defen-
dant’s rights under the confrontation clause by instruct-
ing juries to disregard inadmissible hearsay evidence. See
Richardson v. Marsh, 481 U.S. 200 (1987); Tennessee v. Street,
471 U.S. 409 (1985); and Parker v. Randolph, 442 US. 62
(1979). But,
“there are some contexts in which the risk that
the jury will not, or cannot, follow instructions
is so great, and the consequences of failure so
vital to the defendant, that the practical and
human limitations of the jury system cannot be
ignored.”
Bruton v. United States, 391 U.S. 123, 135 (1968), quoted in
Simmons v. South Carolina, 512 U.S. __, 129 L.Ed.2d 133,
147, 114 S.Ct. ___ (1994): and Cruz v. New York, 481 U.S.
186, 190 (1987).
Bruton v. United States, 391 U.S. 123 (1968) and Cruz v.
New York, 481 U.S. 186 (1987) are cases in which the
defendant’s rights under the confrontation clause were
violated when inadmissible hearsay evidence from a co-
defendant was admitted, despite the court's instruction to
the jury to disregard the evidence. In Bruton, the Supreme
Court held that the Sixth Amendment prohibits the
admission of a nontestifying codefendant’s incriminating
pretrial confession at a joint trial of the defendant and the
codefendant who gave the confession. In Cruz, the
Supreme Court (relying upon Bruton) said that “where a
nontestifying codefendant’s confession incriminating the
defendant is not directly admissible against the defen-
dant, the Confrontation Clause bars its admission at their
joint trial, even if the jury is instructed not to consider it
against the defendant, and even if the defendant's own confes-
sion is admitted against him.” Cruz v. New York at 193.
(emphasis added) In both Bruton and Cruz, the reason for
barring the admission of the evidence was this Court’s
fear that the evidence was so incriminating that the jury
could not be expected to follow the court’s instruction to
disregard the evidence.
This Court, in Cruz, emphasized three factors impor-
tant to determining when a defendant’s Sixth Amend-
ment rights have been violated under Bruton:
. .. the likelihood that the instruction will be
disregarded, Bruton 391 US, at 135, 20 L.Ed.2d
476, 88 S Ct 1620; the probability that such disre-
gard will have a devastating effect, id., at 136, 20
L.Ed. 2d 476, 88 SCt 1620; and the deter-
minability of these facts in advance of trial.
Richardson v. Marsh, post, at 208, 95 L.Ed. 2d 176,
107 S.Ct 1702.
Cruz v. New York at 193.
Nelda Enriquez’s case is indistinguishable from
Bruton and Cruz in these three respects.4 First, the jury
could scarcely be expected to follow the instruction to
ignore the codefendant’s statements as factual evidence
against Ms. Enriquez. The highly incriminating nature of
the codefendant’s statements made them exceptionally
difficult to ignore. Moreover, the instruction was neces-
sarily confusing, commanding the jury, in one breath, to
consider the codefendant’s words in order to place Ms.
Enriquez’s comments in context, and, in the next breath,
to disregard his statements as factual evidence against
Ms. Enriquez. As the Supreme Court has said:
“A jury cannot segregate evidence into intellec-
tual boxes. ... It cannot determine that a confes-
sion is true insofar as it admits that A has
committed criminal acts with B and at the same
time effectively ignore the inevitable conclusion
that B has committed those same criminal acts
with A.”
Bruton v. United States, 391 U.S. 123, 131 (1968) (quoting
People v. Aranda, 407 P.2d 265, 272 (Cal.Supr.Ct. 1965)).
Second, disregarding the Court’s instruction to
ignore the codefendant’s statements as factual evidence
would have been devastating to Ms. Enriquez’s case. The
codefendant’s statements “ ‘expressly implicated’ ” Ms.
* The only difference between Ms. Enriquez’s case and the
Bruton and Cruz cases is that the codefendant’s statements
incriminating Ms. Enriquez were made during the course of
secretly taped conversations between the codefendant and Ms.
Enriquez. In Bruton and Cruz, the codefendant’s incriminating
statements were made as part of pretrial confessions.
10
Enriquez as a coconspirator in the conspiracy to distrib-
ute cocaine; thus, “there was not the slightest doubt that
[the codefendant’s statements] would prove ‘powerfully
incriminating.’ ” Richardson v. Marsh, 481 U.S. 200, 208
(1987) (quoting Bruton v. United States, at 124, n.1, and
135).
Third, the likelihood that the jury might disregard an
instruction to ignore the codefendant’s statements and
the danger associated with the jury’s possible disregard
of the instruction were both evident to the trial court
prior to trial. The court reviewed the codefendant’s state-
ments during a hearing out of the presence of the jury
and was therefore aware that the codefendant’s state-
ments were “incriminating on [their] face” and would
have a devastating effect if considered by the jury. Rich-
ardson v. Marsh, 481 U.S. 200, 208 (1987) (distinguishing
Bruton by explaining that codefendant’s confession was
not incriminating until after it was linked with evidence
introduced later at trial).
The jury should not have been allowed to listen to
the codefendant’s statements. His statements were not
admitted under oath. He was not present for cross exam-
ination. The jury was not allowed to observe his
demeanor or assess his credibility. The instruction to the
jury to accept his statements for one purpose and ignore
his statements for another purpose contained contradic-
tory commands and was thus difficult to understand and
follow. And the statements were so powerfully incrimi-
nating that the jury should not have been expected to
follow the court’s instruction to disregard the statements.
Thus, Ms. Enriquez’s Sixth Amendment rights as defined
1]
in Bruton v. United States and Cruz v. New York were
violated.5
B.
The Circuit Courts Have Admitted Similar Evidence In
The Past But Have Never Determined The Applicability
of Bruton And Cruz To The Incriminating Statements Of
A Nontestifying Codefendant.
The United States Courts of Appeal have previously
ruled that the incriminating statements of nontestifying
third parties are admissible so long as the jury is
instructed to disregard the statements as factual evidence
against the defendant.
In the majority of the Courts of Appeal decisions, the
nontestifying third party was someone other than a code-
fendant. See United States v. Davis, 890 F.2d 1373, 1379-80
(7th Cir. 1989) (conversations with a cooperating wit-
ness); United States v. Stelten 867 F.2d 453, 454 (8th Cir.
1988) (conversations with a paralegal); United States v.
Williams, 604 F.2d 1102, 1118 (8th Cir. 1979) (conversation
with a police officer); United States v. Jordan, 810 F.2d 262,
264 (D.C.Cir. 1987) (conversations with an informant);
United States v. Lemonakis, 485 F.2d 941, 948 (D.C.Cir.
1973) (conversations with a police officer/cooperating
° The fact that the defendant may have made statements
during the course of her conversations with the codefendant
that confirmed the codefendant’s own statements only exacer-
bates the confrontation clause problem: “In such circumstances
a codefendant’s confession that corroborates the defendant's
confession significantly harms the defendant’s case.” Cruz v.
New York, at 192.
12
witness); United States v. Price, 792 F.2d 994, 996-997 (11th
Cir. 1986) (conversations with a confidential informant);
United States v. Whitman, 771 F.2d 1348, 1352 (9th Cir.
1985) (conversations with an informant); United States v.
Murray, 618 F.2d 892, 900 (2nd Cir. 1980) (conversations
with a cooperating witness); United States v. Abrahamson,
568 F.2d 604, 606 (8th Cir. 1978) (conversations with law
enforcement agents).
All of these cases relied upon the seminal case of
United States v. Lemonakis, 485 F.2d 941, 948 (D.C.Cir.
1973), which reasoned that a nontestifying third party’s
inadmissible hearsay statements become admissible non-
hearsay statements once the jury is instructed that the
statements are not being offered for their truth. This
reasoning has led the Courts to further determine that
once the statements of the third party were deemed
admissible nonhearsay evidence, the defendant has no
Sixth Amendment right to confront the third party.
Three circuits, including the Sixth Circuit in Ms. Enri-
quez’s case, have sought to extend Lemonakis to admit the
incriminating statements of a nontestifying codefendant.
See United States v. McDowell, 918 F.2d 1004 (1st Cir. 1990)
and United States v. Gutierrez-Chavez, 842 F.2d 77, 81 (5th
Cir. 1988). Yet, none of these have addressed the question
presented in Bruton and Cruz of whether the limiting
instruction is “an adequate substitute for petitioner’s con-
stitutional right of cross examination.” Bruton at 137.
The flaw in the courts’ analyses in United States v.
McDowell, United States v. Gutierrez-Chavez, and this case
is that the courts have “naively assumed” that jurors can
always be expected to follow the court’s instruction to
13
disregard the statements of a codefendant as factual evi-
dence. But as this Court has said:
‘The naive assumption that prejudicial effects
can [always] be overcome by instructions to the
jury . .. all practicing lawyers know to be
unmitigated fiction.’
Bruton v. United States at 129 and 135 (quoting Krulewitch
v. United States, 336 U.S. 440, 453 (1949)).
This fiction is particularly unmitigated where as here
the missing declarant is a named codefendant in the case.
Unless this Court chooses to say otherwise, Bruton
and Cruz teach us that the statements of the codefendant
in the present case were admitted into evidence in viola-
tion of important and well settled principles that guaran-
tee an American citizen the right to confront her accuser.
+
14
CONCLUSION
Ms. Enriquez respectfully requests this Court to grant
the petition for certiorari and to set aside her conviction
on the ground that the admission of tape recorded state-
ments by a nontestifying codefendant, even with a cau-
tionary instruction, violates the Confrontation Clause of
the Sixth Amendment.
Respectfully submitted,
CHarces W.B. Fets
Counsel of Record
Rircuie, Fers & Dittarp, P.C.
606 West Main Avenue
P. O. Box 1126
Knoxville, TN 37901-1126
(615) 637-0661
Attorney for Petitioner
la
No. 93-5304
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ORDER
(Filed Jan. 24, 1994)
NOT RECOMMENDED
FOR FULL-TEXT PUB-
LICATION
Sixth Circuit Rule 24
limits citation to specific
situations. Please see Rule
24 before citing in a pro-
ceeding in a court in the
Sixth Circuit. If cited, a
copy must be served on
other parties and the
Court. This notice is to be
prominently displayed if
this decision is reproduced.
UNITED STATES
OF AMERICA,
Plaintiff-Appellee,
v.
NELDA ENRIQUES,
Defendant-Appellant.
Nee Ne eee eee ee ee ee ee Nee ees Ne we
BEFORE: MERRITT, Chief Judge, and NELSON and
BOGGS, Circuit Judges.
Defendant-appellant Nelda Enriques filed an appeal
of her conviction and sentence raising thirteen assign-
ments of error, including an alleged Speedy Trial Act
violation which is addressed by this Order. Having heard
oral argument on these issues, we find that we are unable
adequately to review the Speedy Trial issue on the record
before us. We therefore make a partial remand of the case
to the district court for factual findings as to the Speedy
Trial Act issue, while retaining jurisdiction of the case
insofar as the remaining issues raised by Ms. Enriques are
concerned.
2a
An indictment was filed in June, 1992 against five
defendants (not including Ms. Enriques) for violations of
federal narcotics laws. Ms. Enriques was arrested on July
16, 1992. On August 6, 1992, a superseding indictment
was filed adding Ms. Enriques as a defendant along with
the five co-defendants in the original indictment. Enri-
ques first appeared before the district court in Tennessee
on August 21, 1992, and her trial began on November 30,
1992.
Prior to trial, on October 6, 1992, the district court
granted a government motion for extension of time under
18 U.S.C. § 3161(h)(7) of the Speedy Trial Act. In comput-
ing the Speedy Trial time limit, subsection (h)(7) excludes
“{a] reasonable period of delay when the defendant is
joined for trial with a co-defendant as to whom the time
for trial has not run and no motion for severance has been
granted.” 18 U.S.C. § 3161(h)(7). In its order, the district
court did not specify which co-defendant it was referring
to or why the status of a co-defendant’s case warranted
an extension. The order consisted only of a standard form
on which the district court circled the language of subsec-
tion (h)(7).
On November 13, 1992, Ms. Enriques filed a motion
to dismiss based on the Speedy Trial Act. The district
court took up the motion on the first day of trial. Counsel
for Ms. Enriques requested that a record be made regard-
ing the court’s order excluding time attributable to co-
defendants. Counsel pointed out that the court had not
made any factual determination regarding the co-defen-
dant to whom the order referred or regarding anything in
a co-defendant’s case that might warrant an extension of
time. Counsel also reminded the court that Ms. Enriques
3a
had been the last co-defendant indicted. The court first
responded that its order had a factual basis attached to it,
and then stated that the factual basis was in the record.
When Enriques’ counsel asked the court to specify the co-
defendant by name, the court could not do so, but merely
stated that it did not matter that Ms. Enriques was the
last co-defendant indicted. On that basis, the court denied
Ms. Enriques’ Speedy Trial motion without an evidenti-
ary hearing.
On appeal, Enriques argues that the 70-day Speedy
Trial period expired on October 30, 1992, and therefore
that the district court erred in refusing to grant her
motion to dismiss the indictment. As an alternative to
dismissal, she requests that the case be remanded to the
district court for an evidentiary hearing to determine
whether or not a factual basis existed for the court’s
extension of time. The government admits in its brief and
at oral argument that the court’s order is unclear, but
argues that the trial court is not required to make find-
ings under § 1361(h)(7).
The district court is required, upon motion and proof
by the defendant, to dismiss an indictment if the defen-
dant is not brought to trial within the 70-day time limit as
extended by subsection (h). 18 U.S.C. § 3162(a)(2). With-
out a proper exclusion or extension of time, Enriques was
not tried within the time limit. It is therefore crucial to
determine whether the extension of time granted by the
district court was proper. If improper, § 3162(a)(2)
requires dismissal of the indictment.
The district court did not state with sufficient partic-
ularity the basis for the extension of time. The district
da
court identified the section of the statute that was said to
control, but in its colloquy with Ms. Enriques’ counsel the
court did not specify a co-defendant, a pending pretrial
motion, a problem with a co-defendant’s representation,
or any other valid basis for granting an extension of time.
In its brief the government suggests in a footnote that
other co-defendants had applied for and received contin-
uances and extensions. However, the order cited by the
government is the same extension that is now at issue.
We therefore REMAND the case to the district court
for factual findings as to why § 3161(h)(7) applies. If it is
shown that the court’s order has a proper factual basis,
we shall then consider the remaining issues raised by Ms.
Enriques. Should the district court conclude that there is
no factual basis for its initial order, the indictment must
be dismissed pursuant ot 18 U.S.C. § 3162.
It is so ordered.
ENTERED BY ORDER OF THE COURT
/s/ Leonard Green
Clerk
5a
No. 93-5304
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ON APPEAL FROM THE
UNITED STATES
DISTRICT COURT FOR
THE MIDDLE DISTRICT
OF TENNESSEE.
(Filed Aug. 23, 1994)
NOT RECOMMENDED
FOR FULL-TEXT
PUBLICATION
Sixth Circuit Rule 24
limits citation to specific
situations. Please see Rule
24 before citing in a
proceeding in a court in
the Sixth Circuit. If cited,
a copy must be served on
other parties and the
Court. This notice is to be
prominently displayed if
this decision is
reproduced.
UNITED STATES OF
AMERICA,
Plaintiff-Appellee,
v.
NELDA ENRIQUES,
Defendant-Appellant.
eee eee ee eee eee ee eee
BEFORE: MERRITT, Chief Judge, and NELSON and
BOGGS, Circuit Judges.
PER CURIAM. This is an appeal from a conviction
and sentence in a cocaine distribution case. The defen-
dant urges us to reverse her conviction because of alleged
violations of the Speedy Trial Act and the Jencks Act,
allegedly prejudicial comments by the trial judge, and
various alleged evidentiary errors. She challenges her
6a
sentence on the basis of an alleged misapplication of the
sentencing guidelines.
After hearing oral argument, we remanded the
Speedy Trial Act issue. The district court held a hearing
and subsequently entered an order and memorandum
resolving the issue in favor of the government. The par-
ties have now favored us with supplemental briefs on the
Speedy Trial Act question, and the case is ripe for deci-
sion. For the reasons that follow, we shall affirm both the
conviction and the sentence.
Early in June of 1992, acting on a tip that a cocaine
delivery was about to occur in Crossville, Tennessee, FBI
Special Agent Clyde Merryman began investigating the
activities of the suspected buyer, Billy Garrett, Jr. On June
9, 1992, Agent Merryman observed a meeting between
Mr. Garrett and his drug suppliers, Christopher Kennedy
and Wade Gilbert, both of Houston, Texas. Merryman and
several other agents confronted the group at this time.
After telling Mr. Garrett of the informant’s tip, Agent
Merryman advised him of his Miranda rights and asked if
he were [sic] willing to cooperate in the ongoing investi-
gation. Mr. Garrett decided to cooperate with the agents,
as did Kennedy and Gilbert. When asked if there were
[sic] any money in his vehicle, Mr. Kennedy helped
agents recover $5000 in cash from his pickup truck.
Approximately half a kilogram of cocaine was recovered
from Mr. Garrett’s pickup truck.
i
'
.
7a
Kennedy and Gilbert signed confessions stating that
the cocaine had been supplied in Texas by men named
“Tommy” and “Andy.” These individuals were later iden-
tified as Thomas Thompkins and Harris Andy Dadinis.
Kennedy and Gilbert were formally arrested on June 12,
1992, and were released on their own recognizance with
instructions to return to Houston to assist the FBI there.
They were subsequently indicted in the Middle District of
Tennessee.
In the course of the Houston investigation, which
was coordinated by FBI Special Agent Jennifer Brown,
both Kennedy and Gilbert voluntarily engaged in tape-
recorded telephone conversations with targets of the
investigation. Through these tape recordings, the FBI was
able to confirm that the cocaine seized in Tennessee came
from Thomas Thompkins and Andy Dadinis. Thompkins
and Dadinis were arrested in Houston on June 30, 1992.
Through Thompkins, police learned that Dadinis had
obtained the cocaine from a person named “Nelda.”
Dadinis identified this person as Nelda Enriques, the
defendant herein, and Dadinis agreed to Participate in
monitored telephone conversations with her. He also
wore a hidden recorder at meetings with Ms. Enriques in
her residence in Houston.
Based upon the information gathered in its investiga-
tion, the government sought to have Nelda Enriques
added to the indictment. Special Agent Brown obtained
an arrest warrant and a search warrant for Ms. Enriques’
house, and on July 16, 1992, agents went to her house,
arrested her, advised her of her Miranda rights, and
searched the premises. There they found a total of 9.9
8a
pounds (4.5 kilograms) of cocaine and 48.54 pounds of
marijuana. They also recovered a semi-automatic hand-
gun, a digital beeper, scales used for weighing drugs, and
records containing evidence of drug transactions.
Ms. Enriques was taken to the FBI office to be booked
and fingerprinted. On the way to the office she initiated a
discussion of the case with Agent Brown. Agent Brown
advised her of her Miranda rights again once they had
reached the office. Ms. Enriques said that she understood
her rights, and she signed an advice-of-rights form in
which she acknowledged that her subsequent statements
would be made voluntarily. After signing the form Ms.
Enriques admitted to Agent Brown that she had sold the
cocaine that was eventually transported to Tennessee.
In due course Ms. Enriques was added to the indict-
ment in the Middle District of Tennessee. The charges
against her were (1) conspiracy to distribute cocaine and
(2) aiding and abetting her co-defendants’ possession of
cocaine with intent to distribute it, in violation of 21
U.S.C. §§846 and 841(a)(1), respectively. On August 28,
1992, she entered a plea of not guilty. Her trial - which
was eventually severed from the trial of her co-defen-
dants — began on December 2, 1992. Two weeks before the
start of the trial Ms. Enriques moved for acquittal on
Speedy Trial Act grounds. The court denied the motion,
stating that the trial could properly be delayed due to the
joinder of a co-defendant.
At trial the government introduc:d all of the tape-
recorded conversations, much of the evidence seized in
the search of Ms. Enriques’ house, and pictures of Mr.
Dadinis entering and leaving the house. Mr. Dadinis
9a
failed to appear as a witness, although called to do so,
whereupon his bond was forfeited and a bench warrant
was issued for his arrest. The court told the jury of Mr.
Dadinis’ non-appearance and gave several limiting
instructions regarding the uses to which the jury might
put his tape-recorded statements.
The jury found Ms. Enriques guilty of both of the
charges against her. She was sentenced to imprisonment
for 235 months, to be followed by five years of supervised
release, and she was fined $20,000. Ms. Enriques then
filed a timely appeal.
Il.
A. The Speedy Trial Act
The defendant contends that her conviction is invalid
because her trial did not begin within 70 days of August
21, 1992, the date of her first court appearance in Tennes-
see, as required by 18 U.S.C. §3161(c).! It is undisputed
that the defendant's trial did not begin within the 70-day
period. The district court granted an extension, however,
pointing out that 18 U.S.C. §3161(h)(7) permits this in the
event of delay caused by the joinder of a co-defendant for
' Section 3161(c)(1) provides, in pertinent part, as follows:
“In any case in which a plea of not guilty is entered,
the trial of a defendant charged in an... indictment
with the commission of an offense shall commence
within seventy days from the filing date (and making
public) of the . . . indictment, or from the date the
defendant has appeared before a judicial officer of the
court in which such charge is pending, whichever
date last occurs.”
10a
whom the speedy trial period has not yet run. This sec-
tion provides, in relevant part:
“(h) The following periods of delay shall be
excluded .. . in computing the time within
which the trial of any such offense must com-
mence:
‘ ‘ *
(7) A reasonable period of delay when the
defendant is joined for trial with a codefen-
dant as to whom the time for trial has not
run and no motion for severance has been
granted.”
Pressed by the defense to specify the grounds for the
extension, the district court declined to do so and did not
identify the particular co-defendant in question. On
remand, however, the district court indicated that the
period prior to September 29, 1992, had been excluded
due to the joinder of co-defendant Tommy Thompkins.
Although co-defendant Thompkins was arrested in
Houston on June 30, 1992, it was September 29, 1992,
when he first appeared before a judicial officer in the
Tennessee district court. Under 18 U.S.C. §3161(c),
Thompkins’ speedy trial time (and thus the defendant's
time) presumably began to run following the latter event.
Noting that the term “delay” in paragraph 3161(h)(7)
is qualified by the adjective “reasonable,” Ms. Enriques
argues that the delay in bringing Mr. Thompkins before
the court in Tennessee was unreasonable and that her
speedy trial clock began to run before Thompkins
appeared in Tennessee. In this connection she cites sub-
paragraph 3161(h)(1)(H), which provides that “delay
lla
resulting from transportation of any defendant from
another district” will be excluded from the time between
that defendant’s indictment and trial, but that “any time
consumed in excess of ten days from the date [of] an
order of removal or an order directing such transporta-
tion, and the defendant's arrival at the destination shall
be presumed to be unreasonable.”
As the district court observed, the delay in transport-
ing Mr. Thompkins was not unreasonable under the cir-
cumstances. Mr. Thompkins apparently consented to
removal at his detention/removal hearing in the District
Court for the Southern District of Texas on July 6, 1992,
and that court ordered that Thompkins be detained until
trial. The court further ordered, it appears, that Mr.
Thompkins be removed to the Eastern District of Texas
for the processing of other charges against him prior to
his removal to Tennessee. There is no indication in the
record that the time spent in processing the charges in the
Eastern District of Texas was unreasonable, and the statu-
tory presumption does not apply to such activities. We
conclude, therefore, that the district court’s denial of Ms.
Enriques’ motion to dismiss was not erroneous.?
The defendant also points to the district court's fail-
ure to make an express finding, pursuant to 18 U.S.C.
2 The district court’s primary ground for rejecting Ms. Enri-
ques’ argument was that the exception clause of §3161(h)(1)(H)
did not apply because the delay in transporting Thompkins,
even if unreasonable, occurred before Thompkins’ first appear-
ance. We need not decide the validity of this rationale. Neither
do we find it necessary to address the merits of an alternative
analysis that was offered by the government in its supplemental
brief on the speedy trial issue.
12a
§3161(h)(8)(A), that the ends of justice served by delay
outweighed the interests of the public and the defendant
in a speedy trial. This subsection provides, in relevant
part, that the district court may exclude
“{aJlny period of delay resulting from a continu-
ance granted by any judge on his own motion or
at the request of the defendant or his counsel or
at the request of the attorney for the Govern-
ment, if the judge granted such continuance on
the basis of his findings that the ends of justice
served by taking such action outweigh the best
interest of the public and the defendant in a
speedy trial. No such period of delay resulting from
a continuance granted by the court in accordance
with this paragraph shall be excludable under this
subsection unless the court sets forth, in the record
of the case, either orally or in writing, its reasons for
[so finding].” (Emphasis supplied.)
It is clear from the record, however, that the judge did not
purport to extend the time pursuant to subparagraph
3161(h)(8)(A). The exclusion of time for the joinder of a
co-defendant pursuant to paragraph 3161(h)(7) is not a
“continuance,” and it does not require a subparagraph
(h)(8)(A) finding.
B. Prejudice Issues
Ms. Enriques alleges that certain actions and state-
ments by the trial court warrant reversal because they
tended to “cast[] the government's lawyer in the role of
the ‘underdog.’ ” She contends that the court interfered
with the defense’s cross-examination of witnesses and
13a
that the court regularly assumed the role of the prosecu-
tor by interrogating witnesses. In so doing, says the
defendant, the trial judge communicated to the jury that
he favored a conviction.
Conceding that the district court was “strict” ‘n man-
aging the trial, the government maintains that the record
as a whole reflects an orderly trial in which the court
sought to ensure that “issues [were] not obscured and
that the testimony [was] not misunderstood.” See United
States v. Slone, 833 F.2d 595, 597 (6th Cir. 1987). The
government also notes that the trial judge is permitted to
question witnesses for the purpose of eliciting the truth.
Id.
The transcript of the trial reveals no serious trans-
gression by the trial court, in our view; the court was
simply trying to keep extraneous matters out of a com-
plex trial and to encourage the orderly introduction of
evidence.
The defendant also complains that she suffered preju-
dice because two jurors saw her in handcuffs while she
was being transported from the jail to the courtroom. The
incident occurred in the courthouse, but not in the court-
room itself. Defense counsel declined an opportunity to
make inquiry of the jurors regarding the incident and did
not request that a limiting instruction be given to the jury,
so we review for plain error only. Cf. United States v.
Busacca, 863 F.2d 433, 435 (6th Cir. 1988), cert. denied, 490
U.S. 1005 (1989); United States v. Causey, 834 F.2d 1277,
1283 (6th Cir. 1987), cert. denied, 486 U.S. 1034 (1988). A
plain error is defined as “an egregious error, one that
l4a
directly leads to a miscarriage of justice.” Busacca, 863
F.2d at 435.
This court has observed that incidents in which
jurors view shackled criminal defendants for brief
periods outside of the courtroom are less prejudicial than
similar incidents occurring in the courtroom during trial.
See United States v. Barger, 931 F.2d 359, 371 (6th Cir.
1991); United States v. Crane, 499 F.2d 1385, 1389 (6th Cir.),
cert. denied, 419 U.S. 1002 (1974). Here the incident was a
brief one and did not involve the entire jury. We think it
most unlikely that any miscarriage of justice occurred.
C. Evidentiary Rulings
FBI Case Agent Brown testified, without leading by
the prosecutor and without objection from the defendant,
that Ms. Enriques had admitted certain aspects of her
involvement in the cocaine transaction. The prosecutor
followed up with more specific questions, each of which
was posed in the context of Agent Brown’s testimony that
Ms. Enriques had confessed her involvement in the
cocaine deal.
The defendant first argues that her statements should
have been excluded as inadmissible hearsay. But Rule
801(d)(2), Fed. R. Evid., creates an exception to the hear-
say rule for admissions of a party-opponent. The testi-
mony as to what Ms. Enriques said during her interview
was clearly admissible under this exception.
Second, the defendant objects to the testimony on the
ground that it was evoked by leading questions. The trial
15a
court had discretion to permit a certain amount of lead-
ing, however, and we see no abuse of that discretion here.
See Chonich v. Wayne County Community College, 874 F.2d
359, 368 (6th Cir. 1989); United States v. Shoupe, 548 F.2d
636, 641 (6th Cir. 1977).
Ms. Enriques also objects to the introduction of tape-
recorded conversations between the defendant and the
missing co-conspirator, Andy Dadinis. The district court
permitted the tapes to be played, over the defendant's
objection, but gave a limiting instruction in which the
jury was told that it could consider the statements of Mr.
Dadinis only for the purpose of putting Ms. Enriques’
statements in context.
As long as tape recordings are authentic and reliable,
the decision to admit them into evidence rests in the
sound discretion of the trial court. See United States v.
Robinson, 707 F.2d 872, 876 (6th Cir. 1983). Here the defen-
dant contends that the tapes did not meet the authentica-
tion and reliability criteria set forth in United States v.
McMillan, 508 F.2d 101, 104 (8th Cir. 1974), cert. denied, 421
U.S. 916 (1975). McMillan held that admission of a tape
recording is admissible when (1) the recording device
was capable of accurately recording the conversation; (2)
the operator of the device was competent to operate it; (3)
the recording is authentic and correct; (4) changes, addi-
tions, or deletions have not been made; (5) the recording
has been preserved in a manner shown to the court; (6)
the speakers are identified; and (7) the conversation elic-
ited was made voluntarily, in good faith, and without any
kind of inducement. Id.
l6a
Based upon the testimony of the agent who had
monitored Andy Dadinis, the district court concluded
that the McMillan criteria were met. The defendant gives
primary attention to the seventh element of the test,
arguing that the recording was not voluntary because Mr.
Dadinis only agreed to do it in the expectation that he
would receive more lenient treatment from the govern-
ment. We do not see why the motives of Mr. Dadinis
should matter, however, as long as the defendant’s side of
the conversation was voluntary. In any event, there is no
indication here that Dadinis was pressured or threatened
if he did not cooperate. The admission of the tapes did
not constitute reversible error.
The defendant also argues that she was denied any
opportunity to cross-examine Mr. Dadinis and her Sixth
Amendment right to confront the witnesses against her
was thus violated. This contention is also without merit.
The district court explicitly charged the jury not to take
Dadinis’ statements as true and to consider them only for
the purpose of placing Ms. Enriques’ statements in con-
text. Because Mr. Dadinis’ statements were not offered for
the truth thereof, there is no hearsay or confrontation
problem. See United States v. Hathaway, 798 F.2d 902,
904-05 (6th Cir. 1986).
The defendant further argues that the court erred in
admitting testimony by co-defendant Tommy Thompkins
that Mr. Dadinis had mentioned “Nelda” as his source
and said that she was owed $17,500 for cocaine. The
defendant argues that this was error because the state-
ment was not made in furtherance of the conspiracy and
therefore does not meet the hearsay exception of Rule
17a
801(d)(2)(E), Fed. R. Evid.3 This contention likewise lacks
merit. The statement, which came within the time frame
of the conspiracy, was made to apprise Thompkins of the
identity of the source and the credit arrangement that
existed with her. This was in furtherance of the conspir-
acy, so the co-conspirator statement exception to the hear-
say rule applies.
D. Validity of the Search Warrant
The defendant argues that the drugs seized in the
search of her house should have been suppressed because
the search warrant did not list drugs among the items to
be seized. The government responds that omission of the
term “contraband” or the like was simply a “typographi-
cal error.” Be that as it may, we believe that the district
court’s ruling can be upheld on other grounds.
The contraband seized in this case came within the
plain view doctrine since it was immediately visible dur-
ing the legal search of Ms. Enriques’ house and its incrim-
inating character was apparent to the agents. See Arizona
v. Hicks, 480 U.S. 321, 326-27 (1987). The search would not
have been conducted any differently had the police
included “contraband” among the items to be seized. See
Horton v. California, 496 U.S. 128, 139 (1990).
In Horton, a police officer investigating an armed
robbery concluded that there was probable cause to
3 “A statement is not hearsay if .. . [t]he statement is
offered against a party and is... a statement by a coconspirator
of a party during the course and in furtherance of the conspir-
,
acy.
18a
believe that the proceeds of the robbery were contained
in a suspect’s residence. Although the officer’s affidavit
made mention of weapons and proceeds of the robbery,
the warrant authorized search only for the proceeds. The
search of the residence did not turn up any proceeds, but
several guns and other evidence corroborating the state-
ments of witnesses to the crime were found in plain view.
The Supreme Court held that the evidence was properly
seized because, according to the Court, the discovery of
“plain view” evidence does not have to be “inadvertent”
to qualify for the exception. Id. at 141-42.
The fact that the agents might have guessed (or
hoped) that they would find contraband in Ms. Enriques’
home during their search for collateral evidence does not
render the seizure improper. As long as the contraband
was in “plain view” during a legal, reasonable search,
and as long as the criminal character of the evidence was
immediately apparent, the seizure was proper. The fact
that some of the cocaine was found in a box inside a chest
of drawers is of no consequence, since it was reasonable
to search the drawer for items that were listed on the
warrant.
E. Rule 404(b)
Ms. Enriques contends that the court erred in admit-
ting the evidence seized pursuant to the search of her
house because it was introduced only to demonstrate her
bad character and to show conformity with such charac-
ter. She further argues that the judge simply admitted the
evidence based upon a “laundry list” of exceptions in
Rule 404(b), Fed. R. Evid.
19a
Rule 404(b) forbids the introduction of “[e]vidence of
other crimes, wrongs, or acts . . . to prove the character of
a person in order to show action in conformity there-
with.” The rule goes on to provide that such evidence
“may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or acci-
dent... .” “The threshold inquiry a court must make
before admitting similar acts evidence under Rule 404(b)
is whether that evidence is probative of a material issue
other than character.” Huddleston v. United States, 485 U.S.
681, 686 (1988). Once the court determines that the evi-
dence is admissible for a proper purpose, the court must
decide whether the probative value of the evidence is
substantially outweighed by the danger of unfair preju-
dice. Rule 403, Fed. R. Evid.; United States v. Blankenship,
775 F.2d 735, 739 (6th Cir. 1985).
Ms. Enriques contends that the government did not
adequately set forth any permissible purpose for the evi-
dence. The government did, however, offer fairly detailed
reasons as to why the evidence might be probative of
relevant matters other than character. According to the
prosecutor, the evidence would be admissible to show:
“Opportunity . . . could the defendant have
done what the government says she did? Prepa-
ration . . . there is a preparation issue in this
case, because . . . the evidence goes toward the
fact that when the young men, the couriers in
Tennessee, . . . were sent back to determine, and
they did determine . . . who had prepared the
cocaine or the white powder that was later
apprehended in Tennessee. . . . Plan, in a con-
spiracy case, planning is often important, and
20a
the jurors will want to know . .. whether or not
Ms. Enriquez (sic) could have been part of the
plan to get the dope from Texas to Tennessee,
and of course . . . modus operandi, method of
operating, is often at issue in these kinds of
cases, because one wants to see whether or not
this defendant did things in the manner of the
government’s proof . . . [i.e.,] many phone
calls,. .. a fronting, that is a putting out of the
white powder on a credit basis with cash to
come back later.”
This adequately demonstrates that the evidence was pro-
bative of material issues other than character.
The district court gave more than one limiting
instruction reminding the jury that Ms. Enriques was not
on trial for possession of the cocaine or marijuana found
at her house and that the evidence should be considered
for the limited purpose “of showing the modus operandi,
the way she operated generally.” The court then added
that the evidence was “admissible for showing . .
motive, opportunity, intent, preparation, knowledge and
absence of mistake and accident.” In light of these limit-
ing instructions, we do not believe that the evidence had
an unduly prejudicial impact on the jury.
F. Jencks Act Violations/Identity of Informant
The defendant also complains that the district court
erred in refusing to allow her access to a sealed FBI file
maintained by Special Agent Merryman. Following an in
camera review conducted pursuant to the Jencks Act, 18
2la
U.S.C. §3500, the court ordered the government to pro-
duce portions of the file; Ms. Enriques suggests that the
remaining materials may have been withheld improperly.
We have reviewed the materials in question, and we
are satisfied that they do not raise any flags with respect
to the testimony of the government's witnesses; any error
in withholding the materials was harmless.
Ms. Enriques also claims that the court erred in refus-
ing to order the government to reveal the identity of an
informant who was involved in drug negotiations with
her co-defendants. The opportunity to question the
informant at trial might have aided her defense, she says,
because the informant’s testimony could have contra-
dicted the testimony of Agent Merryman or one or more
of the co-defendants.
In deciding whether the government should be
required to reveal the identity of an informant, the courts
must balance the government's interest in protecting the
flow of information against the defendant's right to pre-
pare her defense. Roviaro v. United States, 353 U.S. 53, 62
(1957). The court may consider such factors as the crime
charged, possible defenses to the crime, the potential
significance of the informant’s testimony, and the safety
of the informant. Id.
The party seeking disclosure bears the burden of
showing that the informant’s testimony would provide
substantial assistance to the defense. United States v. Diaz,
655 F.2d 580, 588 (5th Cir. Unit B Sept. 1981), cert. denied,
455 U.S. 910 (1982). This court reviews the district court’s
ruling on such a question “only to determine whether
22a
there was an abuse of discretion that resulted in substan-
tial prejudice” to the defendant. United States v. Straugh-
ter, 950 F.2d 1223, 1232 (6th Cir. 1991), cert. denied, 112 S.
Ct. 1505 (1992). See also United States v. Sims, 975 F.2d
1225, 1238-39 (6th Cir. 1992), cert. denied, 113 S. Ct. 1617
(1993), where we held that the district court did not abuse
its discretion in denying disclosure of an informant’s
identity when the informant merely served to identify the
defendant for an undercover agent.
Having reviewed the FBI file in camera, we are satis-
fied that the “unidentified informant” merely provided
Agent Merryman with a tip as to the sale of cocaine to co-
defendant Garrett. This information related to a person
who was relatively low in the chain of distribution, and
the informant’s testimony would not have been of any
material help to Ms. Enriques.
Il.
Ms. Enriques challenges her sentence on several
grounds. First, she argues that certain quantities of
cocaine not included in the indictment were used imper-
missibly in the caiculation of her offense level under the
sentencing guidelines. The commentary to the guidelines
says that “[c]onduct that is not formally charged or is not
an element of the offense of conviction may enter into the
determination of the applicable guideline sentencing
range.” U.S.S.G. §1B1.3, comment. (backg’d). The com-
mentary also says expressly that quantities of drugs not
included in the conviction may be sometimes considered
in sentencing: |
—_—_—_ ee
23a
“in a drug distribution case, quantities and
types of drugs not specified in the count of
conviction are to be included in determining the
offense level if they were part of the same
course of conduct or part of a common scheme
or plan as the count of conviction.” U.S.S.G.
§1B1.3, comment. (backg’d).
As an example, the application notes to the guidelines
state that
“where the defendant engaged in three drug
sales of 10, 15, and 20 grams of cocaine, as a part
of the same course of conduct or common
scheme or plan, subsection (a)(2) [of §1B1.3]
provides that the total quantity of cocaine
involved (45 grams) is to be used to determine
the offense level even if the defendant is convicted
of a single count charging only one of the sales.”
U.S.S.G. §1B1.3, comment. n. 3.
It is clear, therefore, that the guidelines gave the
district court authority to consider quantities of cocaine
not included in the charge against Ms. Enriques, pro-
vided that the cocaine was the subject of a common
scheme or plan or part of the same course of conduct
with which she was charged. The district court concluded
that the cocaine seized from her house met this require-
ment.
This court has held that “facts used for sentencing
must have some minimum indicia of reliability beyond
mere allegation. In addition, [the Sixth Circuit] has
required that proof presented at sentencing hearings sat-
isfy a preponderance of the evidence standard.” See
United States v. Gibson, 985 F.2d 860, 863 (6th Cir.) (inter-
nal quotes and citations omitted), cert. denied, 113 S. Ct.
24a
2981 (1993). This court reviews the district court’s factual
conclusions under a clearly erroneous standard. Id.
There was substantial evidence linking Ms. Enriques
to the cocaine in question and relating the cocaine to the
sort of scheme with which she was charged. The contra-
band was found in her house, along with records and
equipment tending to show that Ms. Enriques dealt in
substantial quantities of cocaine. In light of the over-
whelming evidence connecting Ms. Enriques to the drugs
in question, as well as the evidence that the cocaine was
part of a common distribution scheme, we conclude that
the court did not err in aggregating the quantities of
cocaine for sentencing purposes.
Ms. Enriques also asserts error in the district court’s
failure to hold an evidentiary hearing before concluding
that she was “the organizer and leader of the cocaine
distribution activity that at least involved herself and five
co-defendants.” She relies on United States v. Bluske, 969
F.2d 609 (8th Cir. 1992), where the Eighth Circuit reversed
a sentence because the district court had relied on the
presentence report without any other fact-finding.
The sentencing hearing in the case at bar was an
extensive one, however, and the parties were given a full
opportunity to argue this issue. Substantial evidence had
been presented at trial to show that Ms. Enriques was a
leader in the conspiracy. The record on which the district
court relied was more than adequate to permit it to arrive
at the conclusion it did.
Ms. Enriques also argues — for the first time in her
reply brief on appeal - that the fine imposed by the
district court was impermissible because it purported to
|
25a
compensate the government for the costs of her incarcera-
tion. Because no specific objection to the assessment of a
fine under U.S.S.G. §5E1.2(i) was made in the district
court, and because the issue was not timely raised on
appeal, we decline to address the merits of this conten-
tion.
AFFIRMED.
26a
Case No: 93-5304
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ORDER
(Filed Sept. 22, 1994)
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
NELDA ENRIQUES
Defendant - Appellant
BEFORE: MERRITT, Chief Judge, NELSON and BOGGS,
Circuit Judges
Upon consideration of the petition for rehearing filed
by the appellant,
It is ORDERED that the petition for rehearing be,
and it hereby is, DENIED.
ENTERED BY ORDER
OF THE COURT
/s/ Leonard Green
Leonard Green, Clerk
27a
Trial Exhibit 4
Telephone Conversation - July 2, 1992
Unidentified
Male: FBI Houston
Agent Brown: Hi, this is Jennifer with another test.
Thank you.
Unidentified
Male: Uh-huh, bye-bye.
Agent Brown: This is Special Agent Jennifer Brown. In
the room with me is a Task Force Agent,
Dickie Smith and also, Harris Andy
Dadinis. We are attempting call phone
number 855-3569. The time is approx-
imately ten minutes after one. The tape
will commence again when he makes
that call. One clarification, that’s Dickie
Williams.
(Dial tone, dialing, phone rings)
Enriquez: Hello.
Dadinis: Nelda.
Enriquez: Huh?
Dadinis: Andy.
Enriquez: Hi.
Dadinis: I'm getting ready to get my car.
Enriquez: Okay.
28a
Dadinis: Okay, I’m, you say they want the party
favors?
Enriquez: Yeah.
Dadinis: Okay. Hey, I haven't, I’ve been out of
touch for two days. We haven't got hold
of those guys yet.'
Enriquez: Uh-huh.
Dadinis: To talk to ‘em about the money.
Enriquez: Right.
Dadinis: From Mississippi.*
Enriquez: Uh-huh.
Dadinis: And I’m gonna get hold of ‘em tomor-
row. Okay?
Enriquez: Oh, cause I need to get that imme-
diately, kid.
Dadinis: I know.
Enriquez: I done paid that out, and I’m the one
that’s in a bind.
Dadinis: I know. Well, I’m, I had to get (unintel-
ligible) of prices. See, everybody has
been giving me a hard time in my area,
because everything's going down to six-
fifty, and I’ve been trying to, you know,
' Emphasis has been added to those portions of Mr.
Dadinis’s conversation that were particularly incriminating to
Ms. Enriquez.
2 Mississippi was significant because Ms. Enriquez had
been informed by Mr. Dadinis that the money he owed her had
been confiscated by the Mississippi State Police.
Enriquez:
29a
get as much as I can. And so it’s been,
they, I been running into like blocks,
but, you know, I’ve got thirty-nine, and
I'm trying to get the... Do I owe fifty-
eighty or fifty-two eighty?
No, you owe fifty-two eighty.
30a
Trial Exhibit 5
Meeting — July 2, 1992
Enriquez: Hi, Andy
Dadinis: Hi, Nelda. What are you doing?
Enriquez: Trying to get out to get out of here for a
little bit.
Dadinis: Getting burnt?
Enriquez: No, just coming to the hard, hot hot air.
Dadinis: Nice and cool.
Enriquez: Yeah, instead of this (unintelligible)
house.
Dadinis: Do you ever use your pool?
Enriquez: Yeah.
Dadinis: Looks like it’s (unintelligible). (Dog
barking)
Enriquez: Come on in. (unintelligible)
Dadinis: (unintelligible)
Enriquez: Yeah (unintelligible) I had some, but we
had to take (unintelligible). (Dog bark-
ing) Shhhh. (unintelligible).
Dadinis: Which one?
Enriquez: The, the guys with that construction
thing.
Dadinis: No, I tried to beep ‘em. I guess they’re
out on the field, cause sometimes it’s
hard to get hold of ‘em. What’s wrong?
(Phone rings) Telephone.
Enriquez: Hello. (Dog barks). No. Okay, okay.
(Hangs up phone) No, nothing’s wrong.
I’m okay (Dog barks)
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Sle
They lick my Sane. but they bark at me.
What ase 4: hoor with that?
(unintelligity§ ,
(ih, may. (deg. barks) Ded you ever, did
you over wed red of those, those 500 for
that guy? That real good stuff, remem
ber, that wood stuff?
Not yet
Not yet? Did he want ‘em?
[hey wanted ‘em, but the other guy had
an accident, a boat accident (unintellig-
ible).
They, they, if he doesn’t want ‘em, do
you want to do ‘em around here? I know
somebody that might be interested in
about three to four hundred.
We've got some of those in Dallas, too.
What, they give you the cash, and you
come and get ‘em or what?
I (unintelligible), uh, remember that guy
I kept telling you about, Gil, that friend
of mine?
Uh-huh.
Well, I talked to him, that if I do it, you
know, you got to show him a sample
because, remember, you got the sample
back from me (unintelligible) show him
a sample and (unintelligible) work it.
No, no, no, not me. You do that, you'll
put me to sleep.
Oh (unintelligible) clean up, a little lazy.
Come on.
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
32a
Take one, and I need to talk to you.
(unintelligible) that thirty-nine hundred,
right?
Right.
Okay. I do have thirty-nine hundred,
but I was waiting for it to get delivered
to me. Okay, my friend that went to
Galveston, he’s a paramedic; he works
at UTMB, okay? I went and stayed with
him and did it. He got called in on an
emergency, okay. So he called, he, he
was supposed to come and give it to me
today; he said he was going to get off
work at midnight, and I didn’t want to
call you and tell you this so he said he’d
get off at midnight and be at my house
by two and bring me the money, okay.
He's going to bring me probably more
than that, because, you know what we
have was the eight I had left, so the
eight I have left, he’s bring all the
money for that, so I'll have, I'll be okay.
So I owe you fifty...
Two. So what did he have, probably
none?
None. I know you're going to shoot me.
Ooooh. (unintelligible) get shorted,
man, I’m already out of seventeen thou-
sand dollars.
See, I thought it would be better if I
came to tell you in person that I would
be later...
Yeah, but I need to get that cash before I
turn anything loose. (phone rings)
Dadinis:
Dadinis:
Dadinis:
Cetin 25 aecialy Be
Dadinis:
Enriquez:
Enriquez:
Enriquez:
Enriquez:
33a
Well, I didn’t expect to get anything
else.
No. Because, uh, right now, I’ve got sev-
enteen thousand out on you. Plus those
five. (answers phone) Hello. (Dog barks)
No, I need to talk to a friend of mine,
and I haven't been able to reach him.
But I will ask him, and I'll call you and
tell you. Bye. (Hangs up phone) I mean,
I could have (unintelligible) and seven-
teen and five. You’re looking at about
twenty-two (unintelligible). I’ve gotta
have that money (unintelligible) money
out.
You're, okay, see, the problem I’m hav-
ing is that everybody in the neighbor-
hood has got it right now, so that’s why
I went to where I went, and their, all the
prices went to six-fifty to six seventy-
five.
I don’t think so, because (unintelligible)
I don’t know where they’re getting it
unless it’s (unintelligible), because it’s
not what we got.
But you remember, we were going to
get, where we, what we were talking
about earlier, we might get your stuff
and (unintelligible).
Right, and I haven’t gotten it, and even
if I did get it today, now I don’t have the
cash, because I’ve got all my cash tied
up.
(unintelligible) price better then.
Right.
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
34a
And I can compete with everybody.
Well, get that cash in the morning
because it was five. That way, you got
something to work with for the week-
end, and try and get ahold of that guy
and, you know, what, he said Friday .. .
Yeah.
.. we'd have that money?
Uh-huh.
I sure as hell hope so.
Ten to fourteen days (unintelligible) got
tied up in Mississippi, but the lawyer
was supposed to have gone to Missis-
sippi, which he said he did last Monday,
not this Monday, Monday before last,
tomorrow makes ten working days; he
said ten to fourteen working days. I’m
going to try to get it.
Okay, well call me in the morning, get
through in the morning, whatever, make
sure (unintelligible) you did get that. We
do have that nice stuff still. And if I
need to get a sample of that down
here. .
Okay.
I can’t get those til tomorrow, though.
35a
Trial Exhibit 8
Telephone Conversation - July 8, 1992
Enriquez: Hello.
Dadinis: Nelda.
Enriquez: Hi.
Dadinis: Andy.
Enriquez: Hold on, I’ve got to answer my door,
hold it please.
Dadinis: Okay.
Enriquez: Hello.
Dadinis: Okay. I just wanted to get in contact
with you.
Enriquez: What’s going on?
Dadinis: Okay. I made a mistake, but it’s not a
bad mistake. Okay, the insurance check,
[ talked to my brother today, I thought it
was going to be this Wednesday; he
meant next Wednesday.
Enriquez: And you don’t have anything?
Dadinis: No. And!...
Enriquez: Well, can’t they advance you anything?
Dadinis: The lawyer? I tried to even get five hun-
dred dollars for me, and they can’t do
anything right now. I got hold of those
construction workers®
Enriquez: Uh-huh
Dadinis: I finally got in touch with them and...
3 Two other codefendants were construction workers.
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
36a
Uh-huh.
And they, they can’t come up with noth-
ing, and they're giving me the run
around, kind of, saying their attorney
can’t get the money or something.
Hold on, let me catch the other line.
Okay. (pause)
(unintelligible)
Yeah.
Anyway, so what is the, the scoop, what
is the bottom line, Andy?
Okay, right now, I don’t, I don’t have
any money.
And what about the guy that owed you
those five?
I’m going to go up to Galveston this
weekend and look for him again.
Cause this is getting ridiculous, you
know week after week. I needed to have
that money, I told you and it’s really not
my problem that you lost it, you know.
Fact is, you’re still responsible.
Okay. Do you, do you have an attorney
or something that I could use that, on
these construction workers, to, to see, to
take that thing over and see if he can get
the, if he can get the money?
Well, you’re not going to be able to if
they can’t prove it. I thought they’d
already done all of that and had been
squared away.
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
37a
That’s what I thought, but... .
Well, look why don’t you call me about
seven o'clock and I'll talk to you then.
Let me think about this.
Well, crazy.
Cause I’m busy right now. I got to do
some things here real quick. I’m lcoking
for some receipts and stuff.
Okay.
All right?
But is there, if I can’t get any, anything,
get them, is there any way you can help
me try to get some money from ‘em?
Sure. That’s why I’m telling you. Let me
think about how I can arrange this.
Okay.
All right?
All right. Call you back at seven?
Yeah.
Okay.
All right, bye.
Bye.
38a
Trial Exhibit 10
Telephone Conversation — July 9, 1992
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Hello.
Nelda?
Yeah.
Andy.
Hi.
I meant to call you back, and I fell
asleep.
Oh, (unintelligible) don’t worry.
Okay. I got hold of the one guy in Gal-
veston.
Uh-huh.
And I told him we'd give him til this
weekend to get it together and pay me,
or we're going to visit him.
So, what did he have to say?
He said he'd get it together by Monday,
and I said, okay.
Okay, cause I need to get that squared
in. What about the other apples?
Okay, I called them and told them they
got the same option, to get ready by
Monday, to get anything they can, you
know, like a car or anything.
Right. Now, you've got it.
Is that good?
Yeah. Anything anybody else needs, it’s
going to be cash up front.
=
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
39a
Uh-huh. (pause)
Bring cash.
Okay, but . . . Is there some . . . Is there
anything good right now?
Yeah.
But the same price?
No you're looking at seven.
Higher?
Well . . . you know, these packages are
higher.
Why?
There ain’t any around hardly. I'll go
over the six seventy five for you, cash,
up front.
What about the green?
That, there’s a. .
That other real expensive stinker . .
Uh-huh
That’s eight and a half.
That went up?
On the animal, skunk.
Oh. Say, how about, is there any-
thing...
and the other one is seven and a half.
Okay. Is there anything around six fifty?
No, other than shitty looking shit.
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
40a
(unintelligible) then.
But, give me a holler if you all need
anything or have, you know, anybody
that wants to turn loose of case (unintel-
ligible) and get things going.
Okay, on the stinkers, is there plenty of
~
that, or just... ?
About sixty.
But on the seven fifty, there is still five
hundred.
Less.
Less?
Yeah.
About a couple hundred?
Yeah.
Okay.
All right?
Yeah. Okay, and I'll give you a call when |
go out and try to get everything together,
and I'll call you by the weekend.
All right.
Okay?
All right.
Bye.
Bye.
einai
4la
Trial Exhibit 11
Telephone Conversation - July 13, 1992
Unidentified
Female:
Dadinis:
Unidentified
Female:
Dadinis:
Unidentified
Female:
Unidentified
Female:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Hello.
Is Nelda there?
Yeah, may I ask who is calling?
Andy.
Hold on.
Nelda, Nelda, it’s Andy. Hang on.
Hello.
Hello.
What’s going on?
No luck with those guys.
Well, you need to come over here and
bring me some records, and bring me
some names and addresses.
Let me ask you a question, how much
do I owe you altogether?
Twenty-two something.
How much, how much do I owe you on
the last thing?
Okay, you owed me seventeen two on
one, and then you owed me five two on
another, so you’re looking about twenty-
two four.
So I owe you seventeen two on that
whole package.
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Dadinis:
Enriquez:
Dadinis:
42a
(unintelligible)
And five two on the last package?
Right, and my people are here in town
right now, and they want names,
numbers, information.
Let’s see, Wednesday, I'll get this settled
for sure, because .. .
Give me your lawyer’s name, and I'll
contact him to make sure that that is
positive information; then I want some-
body’s nuts.
Okay. I'm trying to keep the lawyer out
of it, because I don’t want to get any-
body all heated up, you know.
Cause I’ve waited long enough. I’m not
going to have my money tied up on the
street on no ass holes.
The lawyer went down for those con-
struction workers to Mississippi; he’s
telling me that he
... And now they're trying to tie the
money up.
Didn’t I tell you? I know my shit.
Yeah, they won't release it. And then
that friend of mine in Galveston, you
know, I went down this weekend look-
ing for him; as soon as he... 1 got ahold
of him Friday, and I went down there,
and he just disappeared on me again.
He's trying to avoid me like a plague.
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
43a
I want to stay away from those idiots.
Your phone keeps beeping. So, okay,
Thursday, how about late afternoon, if |
come over late afternoon Thursday?
And you'll have all my money?
Yeah.
Promise?
Seventeen two plus five two twenty-two
four.
Okay.
Okay.
All right, well, keep in touch, and like I
said, if you need anything, things are
available, but I have to have cash up
front. I’m not gonna go for that any-
more, because I, you know, am out a lot
of money, and it’s keeping my ass (unin-
telligible).
I don’t want to do it like that anymore
either, because it puts me. . . I can’t
sleep; I can’t eat. I go chasing every-
body, and this is going to be a new
policy now on.
Yeah, yeah, me, too.
It’s crazy.
No more, they either have cash or they
don’t get nothing.
Okay.
But if you need anything, like I said, I’m
available. We'll work with you, you
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
Enriquez:
Dadinis:
44a
know, whatever it’s going to take, you
know.
Okay.
I’m not upset at you. I’m just upset at
these assholes, because, either way you
look at it, I think they deserve an ass
kicking.
Okay. (unintelligible) I’m going to take
care of it somehow, you know, I don’t
know how, but I’m going to try to get
my money back.
Well, now, I’ve got people that will go
get your money, honey.
Yeah, but I don’t want to put you in a
position.
No, they're not going to involve me,
because they don’t . these people
(unintelligible) never know who they
are.
Okay. But, I mean, can they get it?
They'll get it, honey. These people are
mean.
Okay. I might call you back tomorrow or
Wednesday then.
Okay. Like I said, if you need anything
holler, and on that other, if it’s coming
from him, then we don’t want anything
from them.
(unintelligible)
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.