Petition for Writ of Certiorari — Ruiz v. United States (No. 94-1439)

941430" 2700

OFFICE OF IME CLERK

NO.

in the

SUPREME COURT

of the

UNITED STATES

OCTOBER TERM, 1994

MANUEL JOSE RUIZ,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

Jana V. Jay

4532 E. Tamiami Trail

Naples, Florida 33962

(813) 774-1400

QUESTIONS PRESENTED

WHETHER THE ELEVENTH CIRCUIT’S

ANALYSIS OF THE COURT’S RELIANCE ON A

VERSION OF THE SENTENCING GUIDELINES

PROMULGATED AFTER THE TRIAL AS A BASIS

FOR DENIAL OF A TWO-POINT ACCEPTANCE

OF RESPONSIBILITY REDUCTION IN RUIZ’

BASE OFFENSE LEVEL CONFLICTS WITH

DECISIONS OF OTHER COURTS OF APPEAL,

WHICH COURTS EXAMINE SUCH AN

APPLICATION OF THE GUIDELINES IN AN EX

POST FACTO CONTEXT BY ANALYZING THE

DISTINCTIONS BETWEEN THE VERSIONS IN

QUESTION, RATHER THAN BY ATTEMPTING

TO RECONCILE THE VERSIONS IN LIGHT OF

THE COURT'S PREVIOUS INTERPRETATION.

WHETHER THE ELEVENTH CIRCUIT’S

FAILURE TO CONSIDER AND RULE

APPROPRIATELY ON RUIZ’ ARGUMENT THAT

HE WAS DENIED DUE PROCESS OF LAW AS A

RESULT OF THE IMPROPER JURY

INSTRUCTION ON REASONABLE DOUBT

CONFLICTS WITH DECISIONS OF THIS COURT.

TABLE OF CONTENTS

QUESTIONS PRESGNIES? 2 .ccecccdsweuaea i

TABLE UF CARERS cick cede ensdnasaeaes ii

TABLE OF ALTRI T Shee c0ncvaseueanaeus ill

PRCEEEUAMN 66-00 04sw ses dae ony eee 1

OPTNIOINS BELOW 2... ccciucsvescuwetwewen 2

JURISDICTIONAL STATEMENT ........... 2

CONSTITUTIONAL PROVISIONS .......... 2

SENTENCING GUIDELINES PROVISIONS ... 3

STATEMENT OF THE FACTS ..........--- 4

STATEMENT OF THE CASE ...........--- 6

ARGUMENT FOR ALLOWANCE OF

THE WT oc.cche ee 8

CONCLAISION .......i<<sceesueneee 17

APPGNTNE .... cs. scnceeeee eee 18, App.1

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eT a ee

TABLE OF AUTHORITIES

Miller v. Florida,

482 U.S. 423, 107 S.Ct. 2446,

eS ee 9,11

Nutter v. White,

39 F.3d 1154 (11th Cir. 1994) ....... 15, 16

Rubino v. Lynaugh,

845 F.2d 1266, 1272 (Sth Cir. 1988) ..... 14

Stinson v. United States,

--- U.S. ---, 113 S.Ct. 1913, 123 L.Ed.2d 598

SR eda iret veers eed see cesescesawees 8

Sullivan v. Louisiana

-- US. --, 113 §.Ct. 2078,

124 L.Ed.2d 182 (1993) .........200.- 15

Teague v. Lane,

489 U.S. 288, 109 S.Ct. 1060,

103 L.Ed.2d 334 (1989) ...........6-- 16

United States v. Castillo-Valencia,

917 F.2d 494 (11th Cir.

cert. denied 499 U.S. 925, 111 S.Ct. 1321,

Te Te oe) )) er 13

United States v. Gerber,

24 F.3d 93 (10th Cir. 1994) ....... 9,12, 13

United States v. Johns,

5 F.3d 1267 (9th Cir. 1993) ........ 12, 14

iil

United States v. Prezioso,

Sen F.20 Sz (het CH, 1905)... 6 cc cses ces 12

United States v. Rodriguez,

959 F.2d 193 (11th Cir.),

cert. denied, --- U.S. ---, 113 S.Ct. 649,

BSh Le ee Cee 6 6 65 be bas OSs 13

United States v. Wilson,

95S F.20 204 C19 Cat. 1988) . once seen ss 8

Weaver v. Graham,

450 U.S. 24, 101 S.Ct. 960,

ee beg) | 9, 14

In re Winship,

397 U.S. 358, 90 S.Ct. 1068,

room BR Fh. er ere 15

United States Sentencing Guidelines

Gamnl.5 COMMON. GZ os oc aes cb eas passim

IV

NO.

in the

SUPREME COURT

of the

UNITED STATES

OCTOBER TERM, 1994

MANUEL JOSE RUIZ,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

MANUEL JOSE RUIZ, defendant and

appellant in the courts below, respectfully petitions for

a writ of certiorari to review the judgment of the

United States Court of Appeals, Eleventh Circuit,

entered in this proceeding on July 29, 1994.

OPINIONS BELOW

The opinion of the United States Court of

Appeals for the Eleventh Circuit, reproduced and

attached hereto in the Appendix at pages App. 9 et

seq., was entered on July 29, 1994. It is reported at 26

F.3d 1533.

JURISDICTIONAL STATEMENT

The judgment of the Eleventh Circuit was

entered on July 29, 1994, Certain of the

defendants/appellants filed petitions for rehearing; the

court denied those petitions by its order dated October

18, 1994. Co-defendant/co-appellant FOWLER filed a

motion for reconsideration of the petition for

rehearing; the Court denied that motion on November

28, 1994. This petition for writ of certiorari was filed

within ninety days after entry order denying the said

petitions for rehearing and motions for reconsideration.

The jurisdiction of this court is invoked pursuant to 28

U.S.C. $1254 and Supreme Court Rule 10.1(c).

CONSTITUTIONAL PROVISIONS

Article II, Section 9, clause 3 provides:

No Bill of Attainder or ex post facto Law shall

be passed.

The Fifth Amendment of the United States

Constitution provides:

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases arising

in the land or naval forces, or in the Militia, when in

actual service in time of War or public danger, nor

2

shall any person be subject for the same offence to be ’

twice put in jeopardy or life or limb; nor shall be

compelled in any criminal case to be a witness against ;

himself, nor be deprived of life, liberty, or property,

without due process of law; nor shall private property

be taken for public use, without just compensation.

SENTENCING GUIDELINES PROVISIONS

The 1989 version of Commentary 2 to §3E1.1,

Federal Sentencing Guidelines is as follows:

Conviction by trial does not preclude a

defendant from consideration under this section. A

defendant may manifest sincere contrition even if he

exercises his consti-tutional right to a trial. This may

occur, for example, where a defendant goes to trial to

assert and preserve issues that do not relate to factual

guilt (e.g. to make a constitutional challenge to a

statute or a challenge to the applicability of a statute to

his conduct).

The 1990 version of Commentary 2 to §3E1.1,

Federal Sentencing Guidelines is as follows:

This adjustment is not intended to apply to a

defendant who puts the government to its

burden of proof at trial by denying the

essential factual elements of guilt, is convicted,

and only then admits guilt and expresses

remorse. Conviction by trial, however, does

not automatically preclude a defendant from

consideration for such a reduction. In rare

situations a defendant may clearly demonstrate

an acceptance of responsibility for his criminal

conduct even though he exercises his

constitutional right to a trial. This may occur,

for example, where a defendant goes to trial to

assert and preserve issues that do not relate to

factual guilt (e.g. to make a constitutional

a

challenge to a statute or a

challenge to the applicability of

a Statute to his conduct). In

each such instance, however, a

determination that a defendant

has accepted responsibility will

be based primarily upon pre-trial

statements and conduct.

STATEMENT OF THE CASE and FACTS

STATEMENT OF FACTS

On March 7, 1990, Customs agent Lawrence

Winberg was contacted by Honduran confidential

informant Ellis McKenzie with regard to a narcotics

deal "in the making" (R 16-559, 560). Thereafter,

Agent Winberg worked in an undercover capacity,

setting up the deal in accordance with his "operations

plan" (R 17-886, 887). Several meetings were held in

Miami, Florida, Pensacola, Florida and Point Clear,

Alabama between certain of the defendants including

Andy Schell, Joe Marino, Irving Schwartz and Daniel

Deatherage, law enforcement officers based in Mobile,

Alabama and working undercover, and confidential

informants. As a result of those meetings and in

accordance with Agent Winberg’s operations plan, on

April 18, 1990, packages that purported to be

approximately 500 kilograms of cocaine were ordered

by the U.S. Attorney from the Drug Enforcement

Administration laboratory in Dallas, Texas. The

packages and fifteen-odd armed agents awaited the

defendants in a barn on a pecan farm in rural Baldwin

County, Alabama (R 18-1043, 1044).

Twenty-four hours before the delivery was to

take place, co-defendant Irving Schwartz told Agent

Winberg that he thought two horse trailers were to be

involved in the transport (R 17-892). U.S. Customs

Service Agent James Tanner testified that the next day

4

a

at the Flying K Truck Stop, Mr. Schwartz told him that

there would be two large trucks and a small car, the

latter with a secret compartment that could carry sixty

kilos (R 18-1019). From the rendezvous point at the

Flying K, Agent Tanner and certain of the defendants

were led by Agent Kyle Barnette to the warehouse (R

18-1023). Once there, first an International tractor-

trailer, then a Kenworth truck, backed in. A Nissan

station wagon was parked to the side of the

International (R 18-1023).

A refrigerator truck that held the duffle bags

containing narcotics was parked inside the barn, all the

way to the side. Some of the agents tossed the duffle

bags out on the ground behind the truck. Defendants

Kelly Kalinowski and Sam DeGiso took out and

counted the packages. Defendants Deatherage and

your petitioner were in the vicinity. Agent Tanner

testified that they were both writing something.

Defendants Fernandez, Diaz, Rodriguez, and Pastor

were tending to their respective trucks. According to

Agent Tanner, the International truck was being loaded

with duffle bags, and some packages were allocated to

the Kenworth (R 18-1094, 95). After one truck was

loaded and during the loading of the other truck, Ruiz

and those other defendants present at the barn were

arrested.

At trial, testimony was taken regarding Ruiz’s

presence at the barn and absence from any meetings,

conversations, or negotiations prior to April 18, 1990.

(R 18-1008, 1009; 18-1297). There was testimony that

latent fingerprints lifted from the Nissan matched

Ruiz’s. (R 19-1424, 1425). U.S. Customs Service Agent

Keith Barnette had prepared a report that contained

no reference to Ruiz. He testified at trial that Ruiz

told others at the barn to ensure a correct count (R 18-

1169, 1169; 19-1207). At that time, Agent Barnette was

under indictment by the State of Alabama for murder

by vehicle, which offense carried a penalty of life

5

imprisonment; additionally, a civil suit had been

brought by the victim’s estate, and Barnette had the

option of being represented by the United States

Attorney’s Office. (R 18-1154-1157; 20-1567,73, 20-

1588-95).

Co-defendant Schell testified for the

Government. He and his brother, Larry Feder, had

been involved in the deal since its inception; no

testimony was elicited from him regarding any

involvement in any negotiations, meetings, or

conversations in the deal (R-15 & 16-203-541). He did

testify, however, that he had met Ruiz in May or June

of 1988 at a meeting at which Schwartz and Marino

were also present. Although Schell spoke no Spanish

and testified that Ruiz spoke only Spanish, Schell

purported to know the substance of Ruiz’s conversation

with one René. (R 15-230, 16-481). The court declined

defense counsels’ request to apprise the jury of Schell’s

first experience with the criminal justice system in the

late 1970’s, wherein he was given immunity for his

testimony in a drug rip-off murder. (R 16-484-490,

557).

STATEMENT OF THE CASE

Ruiz and the others were indicted on April 19,

1990, the day after the arrests were effected (R 1-2).

All the men who were arrested in Alabama were

detained from the time of their arrests.

The matter was brought to jury trial on

September 19, 1990. The trial court ruled on James

motions, finding that there was a conspiracy in

existence as alleged in both counts one and three, that

the statements were made in furtherance of the

conspiracy and during the course of the conspiracy (R

21-1978,79).

At the charge conference Ruiz moved for a

mistrial on the grounds that the Government

6

improperly stated the burden of proof. The motion

was denied. (R 21-2088). During closing argument,

the prosecutor stated:

[T]he first thing I wanted to comment on is

this chart which has been referred to by many

of the defense lawyers. And you see, he stops

right here at beyond reasonable doubt. This is

the last piece that is on this chart. The last

level of proof. I submit to you that after you

hear the judge’s charge, you will understand

that this chart is like a glass that is half full of

water. There is nothing up here at the other

half... The government’s burden of proof is

simply to convince you beyond a reasonable

doubt based on reason and common sense

after an objective consideration of the

evidence in the case.

(R 21-2051-2052). [emphasis added].

A motion for mistrial was made on the grounds

that he prosecutor improperly stated the burden of

proof. The court denied the motion. (R 21-2088).

The court instructed the jury as follows:

While the Government’s burden of proof is a

strict or heavy burden, it is not necessary that

a defendant’s guilt be proved beyond all

possible doubt. It’s only required that the

Government’s proof exclude a reasonable

doubt concerning the defendant’s guilt. (R 21-

2095). [emphasis added].

The jury twice indicated it was deadlocked, and the

court gave a modified Allen charge over objection. (R

22-2125-2126). The jury returned its verdict on

| October 5, 1990. The jury returned a guilty verdict on

counts one, three, and five.

7

a

On December 19, 1990, at the sentencing

hearing, the court relied on _ post-conviction

amendments to the Application Notes of the

Sentencing Guidelines to deny Ruiz the two-point

acceptance of responsibility reduction that had been

recommended in this presentence investigation report.

(R 22 2193-2198).

ARGUMENT FOR ALLOWANCE OF THE WRIT

WHETHER THE ELEVENTH CIRCUIT’S ANALYSIS

OF THE COURT’S RELIANCE ON A VERSION OF

THE SENTENCING GUIDELINES PROMULGATED

AFTER THE TRIAL AS A BASIS FOR DENIAL OF A

TWO-POINT ACCEPTANCE OF RESPONSIBILITY

REDUCTION IN RUIZ’ BASE OFFENSE LEVEL

CONFLICTS WITH DECISIONS OF OTHER COURTS

OF APPEAL, THAT EXAMINE AN EX POST FACTO

APPLICATION OF THE GUIDELINES BY

ANALYZING THE DISTINCTIONS BETWEEN THE

VERSIONS IN QUESTION, RATHER THAN BY

ATTEMPTING TO RECONCILE THE VERSIONS IN

LIGHT OF THE COURT’S PREVIOUS

INTERPRETATION.

The opinion of the Eleventh Circuit states that ex

post facto problems may occur where application of the

Sentencing Guidelines and commentary in effect on the

date of sentencing would result in a harsher sentence than

under application of the version in effect at the time of the

commission of the offense, United States v. Wilson, 993

F.2d 214, 216 (11th Cir. 1993) and that Guideline

commentary is authoritative unless its interpretation

violates the law or is an erroneous reading of the

Guidelines. Stinson v. United States, --- U.S. ---, ---, 113

S.Ct. 1913, 1915, 123 L.Ed.2d 598 (1993). The court in the

8

aa

instant case found there was no ex post facto violation

because the amendment in question, the 1990 alteration

of §3E1.1 comment. n. 2 pertaining to acceptance of

responsibility, confirmed the district court’s previous

reading of the section in question, rather than

overruling the court’s prior construction. That the

court’s construction was in line with the amendment is

not a basis for finding the amendment to be one of

clarification rather than one of substantive, and

substantial, change. That the district court may have

applied the 1989 version of §3E1.1 in a manner

consistent with the 1990 version begs the question.

The district court posed the matter as one of

congruity vel non with the court’s interpretation of the

guideline and the amendment thereto. The task that

should have been undertaken by the court, however,

was an initial examination of the facts within the

framework of the principles underlying the Ex Post

Facto Clause, and then an analysis of whether the

amendment merely clarifies, rather than effects a

substantive change. See United States v. Gerber, 24 F.3d

93 (10th Cir. 1994). The Gerber court took its guidance

from Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct.

2446, 2451, 96 L.Ed.2d 351 (1987): "[Flirst, did the

sentencing court apply the guidelines to "events

occurring before its enactment," and second, did that

guideline "disadvantage the offender affected by it."

(quoting Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct.

960, 964, 67 L.Ed.2d 17 (1981)."

Ruiz’s presentence investigation report expressly

relied on the revised commentary to §3E1.1 as the

foundation for approving a two point adjustment for

acceptance of responsibility, based on a letter

submitted by Ruiz submitted to the court approximately

two months prior to the imposition of his sentence, on

October 24, 1990. At that time, the Commentary to

§3E1.1 read:

2. Conviction by trial does not preclude a

defendant from consideration under this

section. A defendant may manifest sincere

contrition even if he _ exercises his

constitutional right to a trial. This may occur,

for example, where a defendant goes to trial to

assert and preserve issues that do not relate to

factual guilt (eg. to make a constitutional

challenge to a statute or a challenge to the

applicability of a statute to his conduct).

Effective November 1, 1990 the commentary was

amended to delete the above paragraph and replace it

with the following:

2. This adjustment is not intended to apply to

a defendant who puts the government to its

burden of proof at trial by denying the

essential factual elements of guilt, is convicted,

and only then admits guilt and expresses

remorse. Conviction by trial, however, does

not automatically preclude a defendant from

consideration for such a reduction. In rare

situations a defendant may clearly demonstrate

an acceptance of responsibility for his criminal

conduct even though he exercises his consti-

tutional right to a trial. This may occur, for

example, where a defendant goes to trial to

assert and preserve issues that do not relate to

factual guilt (eg. to make a constitutional

challenge to a statute or a challenge to the

applicability of a statute to his conduct). In

each such instance, however, a determination

that a defendant has accepted responsibility

will be based primarily upon pretrial

Statements and conduct.

10

eR Stee Re aa

That the first prong of the Miller analysis is

extant is not in dispute. The events to which the

guideline portion is to be applied are not those that

constituted the offense conduct, which occurred well

before the application of the amendment in any case,

but rather the submission of the letter of contrition,

upon which the probation officer relied, the date of

which was October 24, 1990.

Neither is the second prong a matter for dispute.

Had the court travelled under the 1989 version of

§3E1.1 Commentary 2, Ruiz would have enjoyed the

court’s consideration of the two point downward

offense level adjustment to which the probation officer

had originally determined he was entitled pursuant to

that version. That the amendment had a detrimental

effect is apparent when one reviews the court’s

paraphrase of the amended guidelines:

Section 3E1.1, dealing with acceptance of

responsibility application note two says that

the adjustment is not intended to apply to the

defendant that [sic] puts the government to its

burden of proof at trial by denying the

essential factual elements of guilt, was

convicted, and only then admits guilt and

expresses remorse. And further that in each

instance a determination that the defendant

has accepted responsibility would be based

primarily upon pretrial statements and

conduct. I find that none of those factors

relate to this defendant [sic] belated effort to

accept responsibility and for the reasons stated

deny the adjustment for accepted

responsibility.

(R 22-2197-98); U.S.S.G. §3E1.1 comment.n.2. (Nov.

1990).

The Miller analysis having been applied and

found to fit, the clarification-substantive change

examination is made. The amendment is designated to

1]

be one of clarification, but appellate courts have been

quick to find that the Sentencing Commission’s

designation is not granite-etched. See United States v.

Prezioso, 989 F.2d 52 (ist Cir. 1993); United States v.

Johns, 5 F.3d 1267 (9th Cir. 1993); United States v.

Gerber, 24 F.3d 93 (10th Cir. 1994). If one visualizes

the 1989 and 1990 versions of §3E1.1 comment. n.2 as

images on undeveloped film, the darkroom that is the

courtroom should recognize the features in their proper

perspective. Comparison between the two versions,

would be to compare the negative to the developed

photograph. In one frame a defendant is not precluded

from the adjustment because he or she went to trial.

In the other, the reverse is true: one is precluded

except in rare situations. One requires sincere

contrition; the other places temporal limits on which

contrition, whether or not sincere, is considered to be

a factor. In 1989 one may, but...; whereas in 1990 one

may not, except.

The error committed is that the district and

appellate courts interpretated the amendment in light

of their prior construction of it, rather than examining

whether the amendment differs materially from the

preceding version, such that the application of the

more recent amendment works to the detriment of the

defendant. In other words, that the more recent

amendment may express more succinctly the court’s

preferred interpretation does not discharge the court

from the duty of examining, not how the court would

have construed the language had it held the

Commission’s pen, but whether and how that language

impacts the defendant in either application. If there is

an impact, it is improper to decline to critically analyze

the amendment in deference to the Commission’s label

of an amendment as one of clarification.

It is fundamental that in any event an

examination of the nature of the amendment must be

made. While the appellate court examines previous

12

instances wherein it has surveyed §3E1.1, it has not

done so in the framework of considering the nature

and degree of commentary revisions. Both United

States v. Castillo-Valencia, 917 F.2d 494 (11th Cir.

1990), cert. denied 499 U.S. 925, 111 S.Ct. 1321, 113

L.Ed.2d 253 (1991) and United States v. Rodriguez, 959

F.2d 193 (11th Cir.), cert. denied, --- U.S. ---, 113 S.Ct.

649, 121 L.Ed.2d 563 (1992) treat the matter of

application of §3E1.1 where the defendant elects to go

to trial. Neither examines the differences in application

of the section or commentary within the ex post fact

context; accordingly, any similarity between those cases

and the instant case is superficial and devoid of

authority.

The Tenth Circuit in Gerber, infra, illustrated the

analysis that should have been applied. Using a plain

error standard of review in the context of qualification

for a substantial assistance departure, the court

explored whether the ex post facto clause was violated

where, at the time of the commission of the offense,

the guidelines view was whether the defendant had

made a good faith effort to provide substantial

assistance, while at sentencing, the approach was

whether the defendant has provided substantial

assistance. The appellate court found that the

amendment made a substantive change in the standard

that preconditioned a substantial assistance departure.

The Tenth Circuit could have opined, in a

manner parallel to the Eleventh Circuit, that it had

always intended for the good faith effort to have been

a fruitful one, akin to the Eleventh Circuit’s

interpretation of sincere contrition being pre-plea, non-

trial contrition. The Tenth Circuit recognized,

however, that preconditioning the departure on

performance was a material alteration that adversely

impacted the defendant, as was the Eleventh Circuit's

retroactive post-trial precondition of extracting Ruiz’s

right to proceed to trial. The ‘rare instance’ language

13

of the amendment to the commentary drastically

altered the standard to be applied to an acceptance of

responsibility adjustment, such that the court declined

to award to him that which he had previously been |

allotted. ;

The Ninth Circuit in Johns, infra, held that

although an amendment was characterized as clarifying

by the Sentencing Commission, the fact that it enacted

a prohibition that had not existed before trumped that

characterization. In a like manner, the 1990

amendment is ‘not intended’ to apply to those who, in

1989 were sincerely contrite and ‘not precluded’. The

1990 version is tantamount to a prohibition to trial, and

those sentenced under it are appropriately advised of

the trade-off expected for their adjustment. See Weaver

v. Graham, 450 US. 24, 101 S.Ct. 960, 965 ("Critical to

relief under the Ex Post Facto Clause is not an

individual’s right to less punishment, but the lack of

notice and governmental restraint when the legislature

increases punishment beyond what was prescribed when

the crime was consummated.")(emphasis added). Two

principles underlying the ex post facto clause are "to

restrain legislatures and courts from arbitrary and

vindictive action and to prevent prosecution and

punishment without fair warning. Rubino v. Lynaugh,

845 F.2d 1266, 1272 (Sth Cir. 1988)(emphasis added).

Because the ex post facto analysis of the

Eleventh Circuit focuses on reconciling interpretations

of successive versions of the Sentencing Guidelines,

rather than on examining the substantive and

procedural impact of amendments that purport to only

clarify a previous version, the analysis employed by the

Eleventh Circuit, as opposed to that used by the First,

Fifth, Ninth and Tenth Circuits, cannot identify

instances where violations of the ex post facto clause

have occurred. The analysis accorded to Ruiz’s

argument deprived him of the protection of that clause.

of

WHETHER THE ELEVENTH CIRCUIT'S

FAILURE TO PROPERLY CONSIDER AND RULE

ON RUIZ’S ARGUMENT THAT HE WAS DENIED

DUE PROCESS OF LAW AS A RESULT OF THE

IMPROPER JURY INSTRUCTION ON

REASONABLE DOUBT CONFLICTS WITH

DECISIONS OF THIS COURT.

The reasonable doubt standard in criminal

matters is guaranteed by the Due Process Clause. Jn

re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368

(1970). "The reasonable doubt standard guards against

conviction of the innocent by ensuring the systemic

accuracy of the criminal system. Sullivan v. Louisiana

-- U.S. --, 113 S.Ct. 2078, 2083, 124 L.Ed.2d 182 (1993).

(a jury verdict of guilt beyond a reasonable doubt is "a

‘basic protection’ whose precise effects are

unmeasurable"). An erroneous reasonable doubt

instruction invalidates the jury verdict, making it

impossible to assess the accuracy of a conviction

a conviction because "[t]here is no object, so to speak,

upon which harmless error can operate." Sullivan at ---

, 113 S.Ct. at 2082. Nutter v. White, 39 F.3d 1154 (11th

Cir. 1994). After the prosecutor likened reasonable

doubt to a half-full glass, the court instructed the jury

that "it’s only required that the government’s proof

exclude a reasonable doubt..." At the charge

conference, Ruiz had objected to this instruction on the

bases that such an instruction misleads the jury and

lessens their belief of what the standard of reasonable

doubt should be.

The district court’s reasonable doubt definition

is not fatally flawed; in fact, it tracks pattern

instructions that have passed muster. The defect is

rather the instruction pertaining to the burden the

government must meet. Prior to informing the jury

what reasonable doubt is, the court enervated the

strength of the definition by relaxing the duty of what

15

must be done with it. The word ‘only’ does not convey

duty or obligation on the part of the government; its

synonyms are ‘just’, ‘merely’ and ‘simply’.

"[A]n inadequate reasonable doubt instruction

cannot be cured by other circumstances at trial... an

improper reasonable doubt instruction undermines the

fundamental fairness of every trial in which is it used."

Nutter v. White, id, at 1158, cf. Teague v. Lane, 489 U.S.

288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). By the

same token, an adequate reasonable doubt instruction

cannot cure an instruction by the court that directs

application of that standard in such a manner as to

alter the burden of proof. The district court’s

instruction eased the government’s burden, but not only

were there no circumstances to alleviate the harm, the

damage was exacerbated by the prosecutor’s closing

argument reference to the half-full glass.

The practical effect of the instruction pertaining

to the government’s burden with regard to the

reasonable doubt instruction was to eviscerate the

reasonable doubt standard to just such an effect as if

the instruction were internally deficient. The facts in

the instant case present a situation such as that in

Sullivan, id, where the consequence is that there has

been "no judicial determination".

16

CONCLUSION

For the foregoing reasons, Petitioner MANUEL

JOSE RUIZ respectfully prays that the Petition for Writ

of Certiorari to review the judgment of the United States

Court of Appeals for the Eleventh Circuit be granted.

Respectfully submitted,

OMNI LAW CHARTERED

4532 East Tamiami Trail

Pe 304

aples, Florida 339

i 3) /\ 1400 ‘\/

By: > | so

JANA V_JAY, 1 at bes \/

Dated this 22nd day of Febyyary, 1995.

17

INDEX TO APPENDIX

Page

Indictment

LE << aac a's oo os ahuau App. 1

Judgment and Sentence

fe ek err re App. 3

Opinion of Eleventh Circuit Court of Appeals

oP ee eee er er App. 5

[FILED APRIL 19, 1990]

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF ALABAMA

CRIMINAL NO. 90-00052

USAO No. 90R0145

UNITED STATES OF AMERICA

v.

JOSEPH THOMAS MARINO; IRVING SCHWARTZ,

aka GUS, aka WILLIAM HUFF; DANIEL

LEE DEATHERAGE; OSCAR DIAZ; RAMON

RODRIGUEZ, JR.; MANUEL JOSE RUIZ;

AL PASTOR; SAMUEL J. DEGISO; KELLY

FRED KALINOWSKI; ROBERT LINCOLN FOWLER;

JESUS MANUEL FERNANDEZ;

Defendants.

INDICTMENT

The Grand Jury charges:

COUNT ONE

From in or about March, 1990, and continuing

hereafter through on or about April 18, 1990, in the

Southern District of Alabama, Southern Division, and

elsewhere, JOSEPH THOMAS MARINO, IRVING

SCHWARTZ, aka GUS, aka WILLIAM HUFF, DANIEL

LEE DEATHERAGE, OSCAR DIAZ, RAMON

RODRIGUEZ, JR.. MANUEL JOSE RUIZ, AL

PASTOR, SAMUEL J. DEGISO, KELLY FRED

KALINOWSKI, ROBERT LINCOLN FOWLERF., and

JESUS MANUEL FERNANDEZ, did wilfully, knowingly,

]

Mier

and unlawfully combine, conspire, confederate, and agree

together with each other, and with divers other persons

whose names are to the Grand Jury known and unknown,

to commit certain offenses against the United States of

America, to wit:

To knowingly and intentionally unlawfully dis-

tribute and possess with intent to distribute

approximately 1,000 kilograms of cocaine, a

Schedule II controlled substance, in violation

of Title 21, United States Code, Section

841(a)(1).

It was part of said conspiracy that the defendants

would themselves or through other persons at known and

unknown times and places obtain, package, and distribute

cocaine for sale; and that the aforenamed defendants

themselves or through divers other persons would engage

in negotiations about price for the cocaine with

prospective purchasers for same, and would deliver he

cocaine to places necessary for such transactions; all in

violation of Title 21, United States Code, Section 846, and

Title 18, United States Code, Section 2.

OUNT TW

From in or about March, 1990, and continuing

hereafter through on or about April 18, 1990, in the

Southern District of Alabama, Southern Division, and

elsewhere, JOSEPH THOMAS MARINO, IRVING

SCHWARTZ, aka GUS, aka WILLIAM HUFF, DANIEL

LEE DEATHERAGE, OSCAR DIAZ, RAMON

RODRI-GUEZ, JR., MANUEL JOSE RUIZ, AL

PASTOR, SAMUEL J. DEGISO, KELLY FRED

KALINOWSKI, ROBERT LINCOLN FOWLER, and

JESUS MANUEL FERNANDEZ, did wilfully, knowingly,

and unlawfully attempt to commit an offense against the

United States, to wit:

To knowingly and _ intentionally import

approximately 1,000 kilograms of cocaine, a

App. 2

Schedule II controlled substance, into the

United States of America from Honduras, a

place outside the United States of America,

in violation of Title 21, United States Code,

Section 952(a).

All in violation of Title 21, United States Code,

Section 846 , and Title 18, United States Code, Section 2.

COUNT THREE

From in or about March, 1990, and continuing

hereafter through on or about April 18, 1990, in the

Southern District of Alabama, Southern Division, and

elsewhere, JOSEPH THOMAS MARINO, IRVING

SCHWARTZ, aka GUS, aka WILLIAM HUFF, DANIEL

LEE DEATHERAGE, OSCAR DIAZ, RAMON RODRI-

GUEZ, JR.. MANUEL JOSE RUIZ, AL PASTOR,

SAMUEL J. DEGISO, KELLY FRED KALINOWSKI,

ROBERT LINCOLN FOWLER, and JESUS MANUEL

FERNANDEZ, did wilfully, and knowingly, combine,

conspire, confederate and agree with other persons whose

names are to the Grand Jury known and unknown, to

commit certain offenses against the United States, to wit:

To knowingly and intentionally import approximately

1,000 kilograms of cocaine, a Schedule II controlled

substance, into the United States of America from

Honduras, a place outside the United States of

America, in violation of Title 21, United States Code,

Section 952(a).

It was a part of the conspiracy that the defendants

would themselves or through other persons contact certain

individuals to obtain a source of supply for cocaine; that

the defendants would themselves or through others

contract with certain individuals to arrange for the

App. 3

transportation of the cocaine from Honduras to the

United States; that the defendants would themselves or

through others meet with certain individuals to take

delivery of the cocaine upon its arrival in the United

States at a location upon which they had previously

agreed; that the defendants would themselves or through

others provide vehicles and personnel to take delivery of

he cocaine; that the defendants would themselves or

through others provide money to pay for he transportation

of he cocaine from Honduras to the United States where

the vehicles and personnel would then take delivery of he

cocaine; all in violation of Title 21, United States Code,

Section 963, and Title 18, United States Code, Section 2.

COUNT FOUR

From in or about March, 1990, and continuing

hereafter through on or about April 18, 1990, in the

Southern District of Alabama, Southern Division, and

elsewhere, JOSEPH THOMAS MARINO, IRVING

SCHWARTZ, aka GUS, aka WILLIAM HUFF, DANIEL

LEE DEATHERAGE, OSCAR DIAZ, RAMON

RODRIGUEZ, JR., MANUEL JOSE RUIZ, AL

PASTOR, SAMUEL J. DEGISO, KELLY FRED

KALINOWSKI, ROBERT LINCOLN FOWLER, and

JESUS MANUEL FERNANDEZ, did wilfully, knowingly,

and unlawfully, attempt to commit an offense against he

United States, to wit:

To knowingly and intentionally possess with

intent to distribute approximately 1,000

kilograms of cocaine, a Schedule II controlled

substance, in violation of Title 21, United

States Code, Section 841(a)(1).

All in violation of Title 21, United States Code,

Section 846, and Title 18, United States Code, Section 2.

App. 4

COUNT FIVE

From in or about March, 1990, and continuing

hereafter through on or about April 18, 1990, in the

Southern District of Alabama, Southern Division, and

elsewhere, JOSEPH THOMAS MARINO, IRVING

SCHWARTZ, aka GUS, aka WILLIAM HUFF, DANIEL

LEE DEATHERAGE, OSCAR DIAZ, RAMON

RODRIGUEZ, JR.. MANUEL JOSE RUIZ, AL

PASTOR, SAMUEL J. DEGISO, KELLY FRED

KALINOWSKI, ROBERT LINCOLN FOWLER, and

JESUS MANUEL FERNANDEZ, knowingly and

intentionally did unlawfully distribute and possess with

intent to distribute approximately 500 kilograms of cocaine,

a Schedule II controlled substance, in violation of Title 21,

United States Code, Section 841(a)(1).

A TRUE BILL

[S/ REBECCA E. HAYES

FOREMAN, UNITED STATES GRAND JURY

SOUTHERN DISTRICT OF ALABAMA

- - APRIL 1990

J.B. SESSIONS, III

UNITED STATES ATTORNEY

a a

[FILED DECEMBER 20, 1990]

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF ALABAMA

JUDGMENT IN A CRIMINAL CASE

(For Offenses Committed On or After November 1, 1987)

Case Number Cr. 90-00052

UNITED STATES OF AMERICA

v.

MANUEL JOSE RUIZ

JOHN THORNTON

Defendant’s Attorney

THE DEFENDANT:

was found guilty on count(s) 1, 3 & 5 after a plea of not

guilty.

Accordingly, the defendant is adjudged guilty of

such count(s), which involve the following offenses:

Title & Section Nature of Offense Date Offense Count

Concluded Number(s)

21 U.S.C. 846 Conspiracy to distribute & possess with 1

intent to distribute Schedule II

controlled substance (cocaine)

21 U.S.C. 963 Conspiracy to import a schedule II 3

controlled substance (cocaine)

App. 6

21 U.S.C. 841(a)(1) Distribute & possess with intent to 5

distribute Schedule II controlled substance

(cocaine)

The defendant is sentenced as provided in pages 2

through 4 of this judgment. The sentence is imposed

pursuant to the Sentencing Reform Act of 1984.

It is ordered that the defendant shall pay a special

assessment of $150.00, for count(s) 1, 3 & 5, which shall be

due immediately.

It is further ordered that the defendant shall notify

the United States attorney for this district within 30 days

of any change of name, residence, or mailing address until

all fines, restitution, costs, and special assessments imposed

by this judgment are fully paid.

Defendant’s Soc. Sec. No: 266-31-4565

Defendant’s Date of Birth: December 6, 1957

Defendant’s Mailing Address: In Custody —

Defendant’s Residence Address:

Date of Imposition of Sentence December 19, 1990

Signature of Judicial Officer /s/

Name & Title of Judicial Officer Charles R. Butler, Jr.

UNITED STATES _ DISTRICT

JUDGE

Date DECEMBER 20, 1990

App. 7

IMPRISONMENT

The defendant is hereby committed to the custody

of the United States Bureau of Prisons to be imprisoned

for a term of THREE HUNDRED SIXTY (360)

MONTHS WITHOUT PAROLE

The defendant is remanded to the custody of the

United States marshal.

SUPERVISED RELEASE

Upon release from imprisonment, the defendant

shall be on supervised release for a term of five (5) years.

While on supervised release, the defendant shall

not commit another federal, state, or local crime and shall

not illegally possess a controlled substance. The

defendant shall comply with the standard conditions that

have been adopted by this court (set forth below). If this

judgment imposes a restitution obligation, it shall be a

condition of supervised release that the defendant pay any

such restitution that remains unpaid at the commencement

of the term of supervised release. The defendant shall

comply with the following additional conditions:

The defendant shall not possess a firearm or

destructive device.

Special conditions of the defendant’s supervised

release term are:

1.) That he not illegally possess any controlled

substances.

2.) That he participate in a Drug Aftercare

Program as & when directed to do so by the US.

Probation Office.

FINE

The defendant shall pay a fine of $0.00. The fine

includes any costs of incarceration and/or supervision.

App. 8

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

Manue! Jose RUIZ,

Defendant-Appellant.

No. 90-7890.

United States Court of Appeals,

Eleventh Circuit

July 29, 1994,

Thirteen defendants were convicted in the United

States District Court for the Southern District of Alabama,

No. CR90-00052, Charles R. Butler, Jr., J., of offenses

arising Out of their participation in cocaine importation

and distribution conspiracy, and they appealed. The Court

of Appeals, Johnson, Senior Circuit Judge, held that: (1)

limitation of defendants’ cross-examination of customs

agent did not violate confrontation clause; (2) limitation of

defendants’ introduction of government informant’s

deposition did not violate confrontation clause; (3)

prosecutor’s questions regarding statement of white

defendant regarding black man did not warrant mistrial;

(4) prosecutor’s proffered reason for exercising peremptory

strike against black venireperson was race-neutral; (5) any

App. 9

error in admitting first defendant’s statement to customs

agents was harmless; (6) denial of reduction in second

defendant’s sentence for acceptance of responsibility did

not violate ex post facto clause; and (7) sentence of life

imprisonment for third defendant did not violate Eighth

Amendment.

Affirmed.

1. Criminal Law -662.7

Witnesses-350

District court did not violate confrontation clause

or abuse its discretion by prohibiting cross-examination of

customs agent regarding his state arrest for vehicular

homicide and internal affairs investigation and civil action

arising from that incident, notwithstanding defendants’

contention that incident gave agent motive to testify

favorably for government; agent’s testimony was consistent

with statement given prior to both creation of his notes

and his arrest, incident was highly prejudicial, there was

no evidence that government had ability to grant leniency

in state actions against him, and defendants were allowed

to delve into agent’s credibility by inquiring if he had any

reason to "curry favor" with government. U.S.C.A. Const.

Amend. 6.

2. Criminal Law - 661

District court possesses discretionary power to rule

on admissibility of evidence.

3. Criminal Law - 662.7

District court’s discretion in limiting scope of cross-

examination is subject to requirements of Sixth

Amendment. U.S.C.A. Const.Amend. 6.

App. 10

4. Criminal Law - 662.7

Defendant’s right to cross-examine is not unlimited

as once there is sufficient cross-examination to satisfy

confrontation clause, further questioning is within district

court’s discretion. U.S.C.A. Const.Amend. 6

5. Witnesses - 372(1)

Mere fact that defendants seek to explore bias on

part of prosecution witness does not automatically void

court’s ability to limit cross-examination. U.S.C.A.

Const.Amend. 6.

6. Criminal Law - 627.2

District court could limit introduction of deposition

of government informant, whom government declined to

call as witness, prohibiting introduction of portions relating

to informant’s detention for possession of crack cocaine,

notwithstanding defendants’ contention that deposition

demonstrated that customs agent lied in stating that he did

not intervene in detention and showed that informant

might be biased in favor of government’ defendants were

allowed to introduce portions of deposition deemed

relevant for impeachment purposes, including informant’s

admission that he was paid government informant, and

there were no significant inconsistencies between agent’s

and informant’s descriptions of crack cocaine incident.

7. Criminal Law - 662.30

District court’s refusal to allow defendants’ to

introduce entire deposition of government informaiutt,

whom government did not call as witness, including

portions relating to his detention for possession of crack

cocaine, did not violate confrontation clause; informant

was not "vital witness," informant admitted that he was

App. 11

government informant, that he had been paid in past, that

he received $12,000 in instant case, that he received

$2,000 the day before his deposition, and that he spent

time preparing for deposition with customs agents, and

jury was aware that informant stood to receive $250,000,

representing maximum award allowed to informants, and

that whether he received that amount would be

determined by superiors of customs agents involved in

case. U.S.C.A. Const.Amend. 6.

8. Criminal Law - 662.7

Sixth Amendment is satisfied where sufficient

information is elicited to allow jury to gauge adequately

witness’ credibility and to assess his motives or possible

bias. U.S.C.A. Const.Amend. 6.

9. Criminal Law - 706(3)

Prosecutor’s questions regarding white defendant’s

statement, using racial epithet, that only way to control

black man was to beat him with a bat did not warrant

mistrial; prosecutor immediately moved on to other points,

and defendants declined court’s offer to give curative

instruction.

10. Criminal Law - 1158(3)

Court of Appeals gives great deference to district

court’s finding that government rebutted prima facie case

of discriminatory jury selection and reverse only if that

finding is clearly erroneous.

11. Jury - 33(5.15)

Prosecutor’s belief that black venireperson may

have been related to defendant in earlier case she

prosecuted did not justify peremptory challenge of that

App. 12

venireperson; record suggested that venireperson was

unrelated to that defendant as venireperson did not

affirmatively respond to court’s inquiry to venire as to

whether any family member had ever been involved in

criminal matter in court.

12. Jury - 33(5.15)

Venireperson’s inability to pay attention is proper

race-neutral reason for using peremptory strike.

13. Jury - 33(5.15)

To allow meaningful appellate review of claim of

discriminatory use of peremptory strike when strike is

based on venireperson’s demeanor, trial courts should fully

develop record regarding specific behavior of venireperson

that leads to peremptory strike and should verify that

stricken venireperson’s conduct was conspicuously different

from that of other venirepersons.

14. Jury - 33(5.15)

Prosecutor’s explanation for exercising peremptory

strike against black venireperson was _ race-neutral;

prosecutor stated that venireperson was _ generally

inattentive during voir dire, directing her attention toward

defendants and away from prosecution, and defendants did

not dispute that behavior.

15. Criminal Law - 1169.12

Taking of defendant’s statement in contravention of

Miranda is subject to harmless error analysis; court

examines effect erroneously admitted statement had upon

other evidence introduced at trial and upon conduct of

defense and, if, absent statement, remaining evidence is so

overwhelming as to establish guilt beyond reasonable

App. 13

doubt, admission of statement is harmless.

16. Criminal Law - 1169.12

Any error in admitting defendant’s statement,

which was made after alleged invocation of his Miranda

rights, was harmless error, given overwhelming strength of

evidence against defendant on drug conspiracy charges;

customs agent testified that codefendant told him that

automobile with secret compartment would be used to

load and transport cocaine, government introduced

photographs showing automobile’s secret compartment,

customs agents testified that defendant was present at

drug transaction and spent much time under automobile

and that they overheard defendant telling codefendant

that he needed tools and flashlight to open compartment,

and customs agent testified that defendant told him that

compartment held 60 kilograms of cocaine.

17. Criminal Law - 1239

Sentencing Guidelines commentary is authoritative

unless its interpretation violates law or is erroneous

reading of guidelines. U.S.S.G. §1Bl1.1 et seq., 18

U.S.C.A.App.

18. Constitutional Law - 203

Criminal Law - 1233

Where amendments to Sentencing Guidelines

commentary do not overrule prior construction, but,

rather, serve to confirm Court of Appeals’ reading of

guideline section, ex post facto concerns are not

implicated. U.S.S.G. §1B1.1 et seg., 18 U.S.C.A.App;

U.S.C.A. Const. Art 1 §9, cl. 3.

19. Criminal Law - 1139

District court’s application of Sentencing Guidelines

is subject to de novo review. U.S.S.G. §1B1.1 et seq., 18

U.S.C.A.App.

20. Constitutional Law - 203

Criminal Law - 1252

Denial of reduction in defendant’s sentence for

acceptance of responsibility, based on amendment to

commentary regarding reduction when defendant exercised

right to trial, did not violate ex post facto clause;

commentary did not overrule prior construction, but,

rather, accorded with Court of Appeals’ prior reading of

section. U.S.S.G. §3E1.1, comment. (n.2.), 18

U.S.C.A.App; U.S.C.A. Const. Art. 1, §9, cl. 3.

21. Criminal Law - 1213.8(3, 6)

Life sentence imposed on defendant convicted on

charges arising from cocaine distribution conspiracy did not

violate Eighth Amendment, notwithstanding contention

that district court mechanically applied guidelines and did

not appreciate that defendant did not possess intent or

ability to distribute cocaine and that he could not have

distributed it as it was government owned and controlled;

court sentenced defendant and each of his 12 codefendant

individually, and record supported amount of drugs

attributed to defendant. U.S.C.A. Const.Amend. 8.

J.B. Sessions, U.S. Atty., Gloria Bedwell, Mobile, AL, for

USS.

Bill Clay, N. Bay Village, FL, Lawrence E. Besser, Miami,

FL for Diaz.

App. 15

John Thornton, Jr., Thorton, Rothman & Emas, Miami,

FL, Joel Hirschhorn, Coral Gables, FL, for Ruiz.

Domingo Soto, Mobile, AL, for Fernandez.

Richard R. Williams, Mobile, AL, for Pastor.

Leonard Rosenberg, Miami, FL, for Allen.

Gregory S. Reese, Mobile, Ai, for Woods.

John Furman, Mobile, AL for Kalinowski.

Joaquin Perez, Miami, FL, for Rodriguez.

John R. Howes, Ft. Lauderdale, FL, for Marino.

James W. May, Foley, AL, for Degiso.

Robert Levitt, Atlanta, GA, for Swartz.

Alan E. Weinstein, Miami Beach, FL, for Deatherage.

David Garber and Jana V. Jay, Naples, FL, for Fowler.

Appeal from the United States District Court for

the Southern District of Alabama.

Before EDMONDSON, Circuit Judge, J OHNSON,

Senior Circuit Judge, and PITTMAN’, Senior District

Judge.

* Honorable Virgil Pittman, Senior U.S. District Judge for

the Southern District of Alabama, sitting by designation.

App. 16

JOHNSON, Senior District Judge:

Defendant-appellant Oscar Diaz and twelve co-

defendants ("Appellants") ' appeal various aspects of their

convictions and sentences arising out of their participation

in a cocaine importation and distribution conspiracy. After

due consideration, we affirm Appellants’ convictions

sentences.

I. STATEMENT OF THE CASE

A. Background Facts

1. The drug deal

On March 7, 1990, informant Ellis McKenzie

informed Customs Agent Lawrence Winberg that appellant

Billy Allen and others were involved with narcotics.

McKenzie gave Agent Winberg Allen’s telephone number.

Winberg then contacted Allen, identifying himself as a

Colombian drug dealer. As a result of these conversations

and ensuing negotiations, Winberg and other undercover

agents went to Miami, Florida to meed with Allen and

some of his fellow conspirators.

On March 25, 1990, Agent Winberg, Agent James

Tanner, and McKenzie met with Allen and appellant

Dudson Woods at the Sofite! Hotel to discuss their cocaine

deal. Agent Tanner testified that he overheard a

conversation between Allen and McKenzie in which Allen

' The other appellants are Jose Manuel Ruiz (sic), Jesus Manuel

Fernandez, Al Pastor, Billy Allen, Dudson Woods, Daniel Lee

Deatherage, Kelly Fred Kalinowski, Irwin Schwartz, Ramon Rodriguez,

Jr., Robert Lincoln Fowler, Joseph Thomas Marino, and Samuel J.

Degiso.

App. 17

mentioned a previous cocaine trip to Honduras and stated

how rich they would become at the conclusion of the drug

transaction. The next day Allen introduced Agent Tanner

and Agent Kyle Barnette to appellant Joseph Marino.

Later that day, Winberg, Barnette, and Tanner met with

Fabio deChristofaro and appellants Samuel DeGiso, Irving

Schwartz, Allen, Woods, and Marino. At this meeting,

videotaped by the government, Schwartz told Winberg that

he could transport the cocaine using a specially prepared

airplane. Agent Winberg stated that he would supply his

own transportation, whereupon Schwartz offered to buy

1,000 kilograms of cocaine for $10,000--$12,000 per

kilogram. They agreed that Schwartz would pay $250,000

"earnest money” in the United States.

At a videotaped meeting on March 27, 1990,

attended by Winberg, Tanner, Barnette, McKenzie,

Schwartz, Marino, Andy Schell, and Larry Feder, Schwartz

stated that he wanted a long-term deal. Following the

meeting, surveillance units photographed Marino,

Schwartz, Feder, and Schell talking in the parking lot.

These units later photographed Marino meeting with

appellant Dan Deatherage. Winberg subsequently

informed Allen and Woods about the meeting and told

them that he would go to Honduras to work out the deal

in early April.

In early April of 1990, Agents Winberg and

Barnette met Schwartz at a Hilton Hotel in Pensacola,

Florida to discuss the logistics of the cocaine deal.

Schwartz told them that : (1) the cocaine would be sold in

the Northeast; (2) he had a good organization, and (3) his

people were "prepared to die." Subsequently, it was

arranged for Agent Winberg to meet with Schwartz and

Marino in Mobile, Alabama to receive the $250,000

earnest money. The parties agreed that Schwartz or

Marino would remain with Winberg until payment of the

balan:e on the cocaine.

App. 18

On April 10, 1990, the Customs Service in New

Orleans, Louisiana detained McKenzie as he tried to enter

the United States from Honduras. Customs agents

stopped McKenzie because he had crack cocaine on his

person. Winberg went to New Orleans and met with

McKenzie, who was released.

On April 14, 1990, Marino called Winberg to tell

him he was at a hotel in Baldwin County, Alabama. Two

days later, Winberg and Barnette met with Schwartz at the

hotel to receive the earnest money. Feder, Marino, and

Deatherage were also present.

On April 17, Agents Winberg, Barnette, and Mike

Ciaurro met Schwartz to discuss delivering the cocaine in

Baldwin County, Alabama. Because Schwartz told the

agents that he wanted to see the cocaine, Winberg and

Ciaurro

accompanied Deatherage to view the cocaine.” When

shown the cocaine, Deatherage snorted some. The

delivery was then'set for the next day.

In the morning of April 18. 1990, Marino met with

Agents Winberg, Barnette and Ciaurro, telling them that

Schwartz and Deatherage had gone to meet the drivers.

Barnette then left to prepare the delivery site. Marino also

told the agents that (1) he, Schwartz, Schell, and Feder put

up the money for the cocaine and (2) that Mannie

(appellant Jose Manuel Ruiz[sic]) was in charge of

transportation. Marino then offered to stay in Alabama

until the balance of the money was paid.

* The cocaine was not actually from Honduras but was instead from

the government’s supply of previously confiscated cocaine.

App. 19

| —————————

As arranged, Schwartz, Deatherage, and Agents

Barnette and Tanner rendezvoused with the drivers. At

the rendezvous site, Schwartz told the agents that he

would be using two trucks and a Nissan automobile to

transport the drugs--each truck would hold 250 kilograms

with the Nissan carrying sixty kilograms in a secret

compartment. Schwartz introduced appellants Deatherage

and Kelly Kalinowski as "his guys." He then instructed

everybody to go to the loading site, a barn in Baldwin

County, while he returned to the hotel. At the loading

site, agent Keith Barnette observed appellants Oscar Diaz

and Jesus Fernandez working as part of Schwartz’s loading

and transportation crew. Diaz told Keith Barnette that

the cocaine would be hidden in the truck’s sleeper

compartment. As the cocaine was being loaded, several

agents’ observed Deatherage and Ruiz counting the bags.

Agent Tanner overheard Ruiz telling Deatherage to verify

the count because any shortfall would come out of their

pockets. Assisting in the unloading were appellants

Degiso, Kalinowski, Fernandez, Ramon Rodriguez, and Al

Pastor. Agents observed Diaz loading the sleeper

compartment and overheard a conversation between him

and Rodriguez in which each thought that the other had

been counting. Ruiz was then heard telling them that

they were partners and had better get it straight. Diaz

then began using a calculator.

Meanwhile, appellant Robert Fowler asked one of

the agents if he could cover the floor because he was

going to open the Nissan’s secret compartment beneath

the vehicle and did not want to get dirty. As Fowler got

under the Nissan, he told agents that it would hold sixty

kilograms. Fowler also told agents that he did not know

3 A number of agents were in the barn, pretending to be part of

Winberg’s Colombian drug gang.

App. 20

how to open the compartment because he had never

before used it. Fowler asked for various tools, but

Fernandez told him that none were available.

Once the cocaine was loaded, the men were

arrested. Schwartz and Marino were arrested at their

hotel. Woods and Allen were arrested in Miami on April

22, 1990. In a post-arrest statement, Woods admitted

working for Feder and telling Feder that he could obtain

cocaine from McKenzie.

2. Schell’s testimony

Andy Schell testified for the government. He

identified "Mannie" as appellant Manuel Ruiz and admitted

being involved in the drug business with Schwartz, Marino,

and Ruiz. Schell testified that after meeting Schwartz and

Marino, he began buying cocaine from Schwartz, Marino,

and Deatherage and that Feder later became involved.

Schell also testified that, at Schwartz’s request, he raised

$70,000 for the deal with Agent Winberg. Schell identified

Deatherage, Woods, and Allen as Schwartz’s partners.

B. Procedural History

On April 19, 1990, Marino, Schwartz, Deatherage,

Degiso, Ruiz, Diaz, Rodriguez, Pastor, Kalinowski, Fowler,

and Fernandez were indicted in a five-count indictment

charging them with (I) conspiracy to possess with intent to

distribute cocaine, (11) attempt to import cocaine, (III)

conspiracy to import cocaine, (IV) attempt to possess

cocaine with intent to distribute, and (V) possession of

cocaine with intent to distribute. A separate but identical

indictment was issued against Allen and Woods. The two

cases were then consolidated.

The trial began September 19, 1990 and lasted

approximately two and one-half weeks. During the trial,

App. 21

the court granted judgment of acquittal motions in favor

of Diaz, Fernandez, Pastor, Kalinowski, Rodriguez, and

Fowler on Counts II and III. Following the giving of an

Allen charge, Marino, Schwartz, Degiso, Allen,

Deatherage, Woods, and Ruiz were convicted of Counts

I, Ill, and V and found not guilty on Counts II and IV.

In addition, Diaz, Fernandez, Pastor, Kalinowski,

Rodriguez, and Fowler were convicted on Count V and

acquitted on Counts I and IV. Appellants were sentenced

to lengthy prison terms.

II. ANALYSIS

Among them, Appellants raise multiple issues

concerning alleged errors at trial and sentencing.’ We

address below only those issues having merit, specifically

whether: (1) the district court abused its discretion in

restricting cross-examination of Agent Keith Barnette or

informant McKenzie; (2) the prosecutor impermissibly

injected race into the trial; (3) the prosecutor struck a

venireperson based on race, (4) the court erred in

admitting post-arrest statements of Fowler; and (5)

Appellants’ sentences violate either the ex Post Facto

Clause or the Eighth Amendment.’

+ We note that not all Appellants join in each claim. Nonetheless for

the sake of convenience, we will refer to Appeilants when discussing each

claim.

5 Having carefully studied the record, we find that all other issues

raised by Appellants are without merit. Accordingly, further discussion

is not warranted with regard to Appellants’ claims concerning (1) various

acts of alleged prosecutorial misconduct, (2) suppression motions, (3) the

completeness of the trial transcript, (4) double jeopardy, (5) peremptory

challenges, (6) the admission of Deatherage’s other crimes and certain

statements made by Marino, (7) the Allen charge, (8) violations of the

Jencks Act, (9) the sufficiency of the evidence, and (10) Winberg’s cross-

examination.

App. 22

A. Limitations on Cross-Examination

1. Agent Barnette

[1] Shortly after Appellants were arrested, Agent

Keith Barnette was arrested and charged by Alabama

authorities with vehicular homicide committed while on

duty.° At trial, Appellants sought to question Barnette

regarding the arrest and discrepancies between his

testimony and his rough notes, prepared one week after

the arrest. Appellants proffered that they would impeach

Barnette by showing that he had changed his testimony as

a result of the arrest in the hopes of receiving leniency in

his pending criminal case and/or assistance in any civil

actions against him. However, the government filed a

motion in limine to prevent defense counsel from

examining Barnette concerning the vehicular homicide

action. In granting the government’s motion, the district

court held that so long as Barnette’s testimony was

consistent with his rough notes, which had previously been

turned over to Appellants, Appellants could not question

Barnette about the accident or pending action against him.

On direct examination, Barnette testified that Diaz

had spoken to him regarding the "count" on the cocaine

and had used a calculator to add the cocaine packages.

On cross-examination, Barnette admitted that his notes did

not reflect the conversation or Diaz’s use of a calculator.

Appellants then asked Barnette whether there had "been

new developments in your life that might cause you to

* At the time that Barnette testified, he performed only

administrative duties pending the results of an internal affairs

investigation. A civil action was also instituted against him.

App. 23

want to curry favor with the United States Government

prosecutors and customs agents and other law

enforcement agents in this case." Barnette answered in

the negative. Asked the same question a second time by

the court, Barnette again denied having any reason to

"curry favor." Appellants then moved to pursue further

this line of questioning, which was denied.

Appellants next asked whether Barnette was under

investigation by the Internal Affairs of the Customs

Service and no longer on active duty. The court sustained

the government’s objections before Barnette answered

either question. However, Barnette did answer "yes" in

response to Appellants’ question if he would lose his job

if he committed perjury. On redirect, Barnette testified

that the day after Appellants’ arrest and prior to creating

his notes, he told the U.S. Attorney’s Office about the

conversation with Diaz and about Diaz’s use of a

calculator. After the government concluded its case-in-

chief, defense counsel recalled the witness and attempted

to establish its proffer. As before, Barnette denied being

biased or motivated on behalf of the government.

Consequently, the court maintained its prior ruling

prohibiting examination into the

vehicular homicide action. On appeal, Appellants claim

that restricting Barnette’s cross-examination was error.

We disagree.

[2-4] Although the district court possesses

discretionary power to rule on the admissibility of

evidence, United States v. Garcia, 13 F.3d 1464, 1468 (11th

Cir.), cert. denied, __ US. P S.Ct. ;

L.Ed.2d__ (1994), its discretion in limiting the scope of

cross-examination is subject to the requirements of the

Sixth Amendment. Id: United States v. Lankford, 955

App. 24

F.2d 1545, 1548 (11th Cir. 1992).’ The right to cross-

examine is not unlimited, however, because once there is

sufficient cross-examination to satisfy the Confrontation

Clause, further questioning is within the district court’s

discretion. United States v. Taylor, 17 F.3d 333, 340-41

(11th Cir. 1994). "The test for the Confrontation Clause

is whether a reasonable jury would have received a

significantly different impression of the witness’ credibility

had counsel pursued the proposed line of cross-

examination." Jd. (quoting Garcia, 13 F.3d at 1469).

[5] Appellants wished to question Barnette about

the state court indictment, hypothesizing that it gave him

‘motive to testify favorably for the government in the hopes

that he would receive leniency or assistance as to the

homicide action. Appellants rely on Greene v. Wainwright,

634 F.2d 272, 275-76 (Sth Cir. 1981) for the proposition

that because they were attempting to show bias on the part

of a prosecution witness, Barnette, the limitation on cross-

examination was unconstitutional. Nonetheless, the mere

fact that Appellants sought to explore bias on the part of

a prosecution witness does not automatically void the

court’s ability to limit cross-examination. It is axiomatic

that the right to cross-examination is not absolute because

"the information sought to be elicited must be relevant."

Haber v. Wainwright, 756 F.2d 1520, 1522 (11th Cir. 1985).

Here, Barnette’s testimony was consistent with

statements given prior to both the creation of his notes and

his arrest. Barnette’s testimony simply parroted statements

made at a time when he had no special incentive to seek

the government’s help. Because of the highly prejudicial

’ The Confrontation Clause of the Sixth Amendment provides: "In all

criminal prosecutions, the accused shall enjoy the right ... to be

confronted with the witnesses against him." U.S. Const., sixth amend.

App. 25

‘

Oe

nature of the arrest, the court properly handled the cross-

examination by limiting inquiry into the accident as long

as Barnette’s testimony did not deviate from his notes and

prior statements. The fact that his testimony was entirely

consistent with these prior statements demonstrates that

Barnette was not shading his testimony in an effort to gain

leniency on his state court case. Moreover, we note that

there is no evidence in the record showing that the

government had the ability to grant leniency in Barnette’s

Alabama action. In light of these circumstances, we fail

to see how the limitation on cross-examination constituted

an abuse of discretion or violated the Sixth Amendment.

See United States v. Thorn, 917 F.2d 170, 176 (Sth Cir.

1990) (barring defendant from exploring government

witness’ state law indictment did not violate Sixth

Amendment as there was no evidence the government

could influence the state court proceedings, and the

existence of a pending state court indictment on charges

totally unrelated to the testimony offered in the case did not

give the witness a substantial reason to cooperate with the

government). Finally, Appellants were able to delve into

Barnette’s credibility, albeit in a limited fashion, by inquiring

if he had any reason to "curry favor" with the government.

Thus, the district court did not abuse its discretion by

limiting Appellants’ cross-examination of Barnette.

2. Informant Ellis McKenzie

At trial, the government declined to call McKenzie as

* Appellants’ reliance on Lankford is misplaced inasmuch as Lankford

involved a witness’ possible motive to cooperate with the government in

order to (1) “protect his sons," (2) “obtain general assistance in avoiding

a subsequent federal prosecution against them," and (3) "solicit help [from

the] federal government in his sons’ state case." 955 F.2d at 1549. The

facts in this case are substantially different.

App. 26

a witness. Instead, Appellants introduced McKenzie’s

testimony via a pre-trial deposition. Appellants planned to

use the deposition to show that Winberg lied in stating that

he had not intervened and assisted McKenzie when

McKenzie was detained for possession of crack cocaine in

New Orleans. Additionally, Appellants sought to

demonstrate that McKenzie might be biased in favor of the

government to prevent criminal charges being brought

concerning the New Orleans crack incident. The district

court refused to allow Appellants to introduce the entire

deposition, allowing only those portions that it deemed

relevant for impeachment purposes. Thus, Appellants

were prohibited from introducing McKenzie’s testimony

about his detention in New Orleans. However, the court

did permit Appellants to introduce portions of the

transcript in which McKenzie admitted being a paid

government informant. Appellants claim that the court’s

limitation violated their Sixth Amendment confrontation

rights and constituted reversible error. We disagree.

[6] The court did not err by refusing to allow

Appellants to enter either those portions of McKenzie’s

deposition involving the New Orleans incident or the

deposition in toto. See United States v. Thompson, 976 F.2d

666, 671 (11th Cir. 1992)(introduction of complete medical

records unwarranted where they were not as a whole

probative of witness’ credibility; only those portions

inconsistent with witness’ trial testimony were probative

and could be used for impeachment), cert. denied,--- U.S. -

--, 113 S.Ct. 3010, 125 L.Ed.2d 701 (1993). Furthermore,

a review of the record demonstrates no significant

inconsistencies between Winberg’s and McKenzie’s

descriptions of the New Orleans crack incident.

Accordingly, the district court did not-err in limiting the

impeachment uses of McKenzie’s deposition.

[7,8] We find that Appellants’ Sixth Amendment

claims sirailarly lack substance. Although Appellants

App. 27

wanted to probe deeply into McKenzie’s background, the

Sixth Amendment is satisfied where sufficient information

is elicited to allow the jury to gauge adequately a witness’

credibility and to assess his motives or possible bias.

United States v. Burke, 738 F.2d 1225, 1227-8 (11th Cir.

1984) (sufficient information elicited where jury knows a

witness has been granted immunity, participated in the

witness protection program, and received money from the

government). For example, in United States v. ituk, we

held that a court does not abuse its discretion by limiting

cross-examination of the government’s "most vital" witness

where the jury knows that the witness has an agreement

with the government to testify in exchange for a lenient

plea arrangement on pending charges. 690 F.2d 1289,

1337 (11th Cir. 1982), cert. denied, 461 U.S. 928, 103 S.Ct.

2089, 2090, 77 L.Ed.2d 300 (1983).

Here, analogous information was presented to the

jury. McKenzie, who can in no way be termed a "vital

witness," admitted that he was a government informant,

that he had been paid money in the past, and that he had

received $12,000 in this case. He also testified that he

had received $2,000 the day before his deposition and that

he spent time preparing for his deposition in the company

of Agents Kyle Barnette and Dwight McDaniel. The jury

also knew that McKenzie stood to receive $250,000,

representing the maximum award allowed to informants.

Finally, the jury was aware that whether McKenzie

actually received the $250,000 would be determined by

Winberg’s superiors. Under these circumstances, no

further bias would have been exposed by investigation into

McKenzie’s character of the events surrounding his New

Orleans detention. United States v. Alonso, 740 F.2d 862,

874 (11th Cir. 1984)(court properly prohibited inquiry into

facts concerning witness’ arrest; defendants were allowed

to ask if witness made a deal with government or expected

a benefit for testifying), cert. denied, 469 U.S. 1166, 105

App. 28

S.Ct. 928, 83 L.Ed.2d 939 (1985).’

B. Racial Comments

[9] Appellants claim that the prosecutor

impermissibly injected race into the case during the

redirect of Schell wherein the following exchange occurred:

PROSECUTOR: You responded to some questions

related to pressure from Mr. Schwartz and Mr.

Marino about money that was owed, do you recall

those questions?

SCHELL: Yes.

PROSECUTOR: What type of pressure, if any, was

applied to you for collection for money?

SCHELL: Mr. Marino, not Mr. Schwartz. He had

told me that I couldn’t control Struder and that the

only way to control him was to take a bat to him.

He used other words but that was the jist [sic] of it.

DEFENSE COUNSEL: I object to the conclusion of

remarks as to what he considers the jist [sic] of

something said to him and ask that last statement be

stricken.

THE COURT: I am not sure I understand your last

answer, without giving any undue....

SCHELL: Okay. Struder--he told me that he

wanted to go to Struder’s house and that the only way

to control a nigger was to beat him with a bat.

” Given the overwhelming evidence presented against each appellant,

even if we were to conclude that McKenzie’s cross-examination had

erroneously been limited, the error would have been harmless. See

Gnizzell v. Wainwright, 692 F.2d 722, 726 (11th Cir. 1982) (no "reasonable

probability” that verdict was affected by the error), cert. denied, 461 U.S.

948, 103 S.Ct. 2129, 77 L.Ed.2d 1307 (1983).

App. 29

THE COURT: Overrule your objection.

PROSECUTOR: Were those Mr. Marino’s

exact words?

SCHELL: Yes.

PROSECUTOR: Is Mr. Struder a black

man?

DEFENSE COUNSEL: Judge, I object.

That is absolutely immaterial and irrelevant

in regard to this.

THE COURT: Overruled.

(emphasis supplied).

Schell did not answer the prosecutor’s question as the

prosecutor immediately moved onto other points. At a

bench conference following this examination, Appellants

moved for a mistrial, alleging that the government was

attempting to inflame the black jurors against the white

Appellants. The district court denied the motion.

Appellants declined the court’s offer to give a curative

instruction.

While this Court is ever-vigilant regarding the

improper injection of race into criminal trials, the

prosecutor’s statements do not constitute an improper appeal

to race. Thus, we do not believe that a mistrial was

warranted. See Willis v. Kemp, 838 F.2d 1510, 1522-23 (11th

Cir. 1988)(although improper, prosecutor's question of black

defendant as to whether he referred to his white victim as a

"honkey" was not grounds for granting a mistrial), cert.

denied, 489 U.S. 1059, 109 S.Ct. 1328, 103 L.Ed.2d 596

(1989); United States v. Krohn, 573 F.2d 1382, 1389 (10th

Cir.) (government's eliciting from a witness that one of two

white defendants on trial for mail fraud had referred to a

victim of their scheme as a "poor black bastard" was not an

appeal to racial prejudice), cert. denied, 436 U.S. 949, 98

S.Ct. 2857, 56 L.Ed.2d 792 (1978). See also united States v.

Hernandez, 865 F.2d 925, 927-28 (7th Cir. 1989)(prosecutor’s

App. 30

improper closing remark to "send clear message to Cuban

drug dealers was not so inflammatory as to prejudice

Cuban defendant).

C. Strike of Venireperson

At trial, the prosecutor exercised peremptory strikes

to remove three black persons from the jury. Appellants

assert that one of these challenges, that of venireperson

Portis, violated the Constitution’s equal protection

guarantee because it was racially motivated. See Batson v.

Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69

(1986). Without finding that Appellants had established a

prima facie case of discrimination, the district court asked

the prosecutor to articulate the reasons underpinning the

strikes. The prosecutor responded that she struck Portis

because (1) she believed that Portis may have been related

to a defendant whom she had formerly prosecuted and (2)

Portis was generally inattentive during the voir dire,

focusing on the defense table during jury selection. The

court upheld the strike of Portis.

[10-12] We give great deference to a district

court’s finding that the government rebutted a prima facie

case of discriminatory jury selection and reverse only if

that finding is clearly erroneous. United States v. Cure, 996

F.2d 1136, 1138 (11th Cir.1993), cert denied, _ U.S. ___,

114 S.Ct. 1075, 127 L.Ed.2d 393 (1994). Given that the

court asked the prosecutor to explain her strikes of the

black venirepersons, we shall assume that Appellants met

the requirements of a prima facie case and therefore

proceed directly to determining whether the prosecutor’s

reasons for striking Portis were race-neutral. The

prosecutor’s belief that the venireperson may have been

related to a defendant in an earlier case did not justify the

challenge. The record suggests that the venireperson was

unrelated to that defendant as Portis did not affirmatively

App. 31

respond to the court’s inquiry to the venire whether any

family member had ever been involved in a criminal

matter in court. Nonetheless, a venireperson’s inability to

pay attention is a proper race-neutral reason for using a

peremptory strike. See United States v. Hendrieth, 922

F.2d 748, 749-50 (11th Cir. 1991)(per curiam)(upholding

trial court’s decision to allow a strike based upon a juror’s

inattentiveness and her rolling and rubbing her eyes

during voir dire).

[13] Explanations based upon a juror’s demeanor

are, however, difficult to confirm on appeal because the

transcripts that comprise the record before the Court do

not portray the unacceptable behavior. Moreover, such

explanations are particularly susceptible to the kind of

abuse prohibited by Batson . Consequently, to allow

meaningful appellate review, trial judges should fully

develop the record regarding the specific behavior by a

venireperson that leads to a peremptory strike and should

verify that the stricken venireperson’s conduct was

conspicuously different from _ that of the other

venirepersons. See United States v. Cooper, 19 F.3d 1154,

1161 (7th Cir.1994) (upholding demeanor-based strikes in

part because trial judge noted on record that, based on his

own observations, the prosecutor’s interpretations were

reasonable); Michael J. Raphael & Edward J. Ungvarsky,

Excuses, Excuses: Neutral Explanations Under Batson v.

Kentucky, 27 U.MICH J.L.REF. 229, 246-50, 266-67 (1993)

(arguing that courts should reject demeanor-based

explanations that cannot be confirmed by the record).

[14] In this case, Appellants do not dispute that

Portis directed her attention toward the defendants, away

from the prosecution, during jury selection, allowing us to

infer that Portis’ behavior was different from the other

venirepersons. Cf. Cure, 996 F.2d at 1138-39 (defense

counsel’s failure to offer contrary description of

venireperson’s demeanor militates against reversal).

App. 32

Accordingly, the district court did not clearly err by finding

that the prosecutor offered a race-neutral reason for

striking Portis from the jury.

D. Robert Fowler’s Post-Arrest Statement

Following the receipt of his Miranda rights at the

barn, Fowler was asked if he wanted to waive his rights.

He responded by shaking his head. He was then taken to

jail. Some four hours after his arrival, agents brought him

to an interview room where Agent McDaniel told Fowler

the charges against him and that he would be tried in

Alabama. Agent McDaniel then asked other agents

present in the interview room if Fowler had been

"Mirandized." Thinking that Fowler might not understand

the term "Mirandized," McDaniel notified Fowler that he

had a right to an attorney and a right not to speak to the

agents. Fowler acknowledged that he was aware of his

Miranda rights. McDaniei then asked him if he wished to

cooperate. At trial, McDaniel testified that Fowler

responded by saying that he could not cooperate, he did

not know anything or anybody, he was paid to be "blank,"

and he was simply a chauffeur driving someone from

Miami. McDaniel further testified that when he

questioned Fowler about $500 that Fowler possessed when

arrested, Fowler stated that he would rather not say who

paid him and that he was sorry he had gotten greedy.

Fowler then asked for an attorney and questioning ceased.

The court denied Fowler’s motion to suppress these

statement.

[15] On appeal, Fowler contends that the denial of

his suppression motion was error because he had

unequivocally invoked his Miranda rights. Assuming,

without deciding, that Fowler is correct, the taking of his

Statements in contravention of Miranda is subject to the

harmless error analysis. United States v. Beale, 921 F.2d

1412, 1435 (11th Cir.), cert. denied, --- U.S. ---, 112 S.ct.

App. 33

100, 116, L.Ed.2d 71 (1991); United States v. Pena, 897

F.2d 1075, 1082 (11th Cir. 1990). Our inquiry is two-fold.

First, we examine the effect the erroneously admitted

statement had upon other evidence introduced at trial and

upon the conduct of the defense. Beale, 921 F.2d at 1435.

Second, if, absent the illegal statement, the remaining

evidence is so overwhelming to establish guilt beyond a

reasonable doubt, admission of the statement is harmless.

Id.

[16] At trial, Agent Tanner testified that Schwartz

told him that a Nissan automobile with a secret

compartment in its underbelly capable of storing sixty

kilograms of cocaine would be one of the vehicles used to

load and transport the drugs. The government introduced

photographs showing the Nissan’s secret compartment at

trial. It is uncontroverted that Fowler was present at the

barn and that he spent much time there under the Nissan.

Agents Lamplaugh, Tanner, and Keith Barnette testified

that at the barn Fowler expressly told them that he was

attempting to open the Nissan’s hidden compartment.

Agents Lamplaugh and Tanner also testified that they

overheard Fowler telling other appellants that he needed

tools and a flashlight to open the compartment.

Additionally, Agent Lamplaugh testified that Fowler told

him that the compartment held sixty kilograms of cocaine.

Given the overwhelming strength of this evidence, we

conclude that the admission of Fowler’s post-arrest

statements was harmless error.

E. Sentencing Issues

1. Ex Post Facto Violation

[17] To avoid ex post facto problems, we have

held that a defendant is to be sentenced under the

Guidelines and commentary in effect on the date of

sentencing unless a more lenient punishment would occur

App. 34

under the Guidelines’ version in effect on the date the

offense was committed. United States v. Wilson, 993 F.2d

214, 216 (11th Cir.1993). Furthermore, Guideline

commentary is authoritative unless its interpretation

violates the law or is an erroneous reading of the

Guidelines. Stinson v. United States, --- U.S. ---, ---, 113

S.Ct. 1913, 1915, 123 L.Ed.2d 598 (1993).

[18] Ruiz claims that an ex post facto violation

occurred when the district court refused to give him an

acceptance of responsibility reduction based on

commentary that took effect after he was convicted but

before he was sentenced. Although "application of an

intervening Guideline interpretation by commentary

promulgated after the offense could run afoul of the Ex

Post Facto Clause," United States v. Carroll, 6 F.3d 735, 746

n.9 (11th Cir.1993), cert. denied, --- U.S. ---, 114 S.Ct. 1234,

127 L.Ed.2d 577 (1994), we are not confronted with such

a situation. Where, as here, the amendments do not

overrule prior construction but instead serve to confirm

our reading of the Guideline section, ex post factor

concerns are not implicated. /d.

[19] Prior to Ruiz’s sentencing, the Guidelines

Stated:

Conviction by trial does not preclude a

defendant from consideration [for receiving an

acceptance of responsibility reduction.} A

defendant may manifest sincere contrition

even if he exercises his constitutional right to

a trial. This may occur, for example, where a

defendant goes to trial to assert and preserve

issues that do not relate to factual guilt (e.g.

to make a constitutional challenge to a statute

or a challenge to the applicability of a statute

to his conduct).

U.S.S.G. §3E1.1 comment. (n.2) (Nov. 1989).

App. 35

The revised commentary that the court applied at

sentencing provides that the acceptance of responsibility

reduction

is not intended to apply to a defendant who

puts the government to the burden of proof

at trial by denying the essential factual

elements of guilt, is convicted, and only

then admits guilt and expresses remorse.

Conviction by trial, however, does not

automatically preclude a defendant from

consideration for such a reduction. In rare

situations a defendant may clearly demon-

strate an acceptance of responsibility for his

criminal conduct even though he

exercises his constitutional right to a trial.

This may occur, for example, where a

defendant goes to trial to assert and

preserve issues that do not relate to factual

guilt (e.g. to make a constitutional challenge

to a statute or a challenge to the applic-

ability of a statute to his conduct). In each

such instance, however, a determination

that a defendant has accepted responsibility

will be based primarily upon pre-trial

statements and conduct.

U.S.S.G. §3E1.1 comment. (n.2) (Nov. 1990). The district

court’s application of the sentencing Guidelines is subject

to de novo review. United States v. Rodriguez, 959 F.2d

193, 195 (11th Cir.), cert. denied, ---U.S.---, 113 S.Ct. 649,

121 L.Ed.2d 563 (1992).

[20] We have previously held that entry of a not

guilty plea and insistence upon a trial are factors that may

be considered in determining whether a defendant has

accepted responsibility for his crime. United States v.

Castillo-Valencia, 917 F.2d 494, 501 (11th Cir. 1990)

(holding that decision to go to trial may not be used to

App. 36

bar categorically an acceptance of responsibility reduction),

cert. denied, 499 U.S. 925, 111 S.Ct. 1321, 113 L.Ed.2d 253

(1991). Moreover, we have also recognized that a

defendant who exercised his right to trial may diminish his

chance of being granted the acceptance of responsibility

reduction as there is less evidence of acceptance to weigh

in his favor. Rodriguez, 959 F.2d at 197. Thus, the revised

commentary relied on by the district court does not

overrule §3E1.1 but instead accords with our reading of

the section. In such cases, the Ex Post Facto Clause is not

implicated. Thus, this claim fails. Cf Carroll, 6 F.3d at

746 n. 9 (no ex post facto concerns where Guideline

amendment regarding definition of a drug does not

overrule prior constructions of the Guideline but instead

confirms our reading of the Guideline).

2. Eighth Amendment

[21] Schwartz claims that his life sentence violates

the Eighth Amendment. According to Schwartz, the

district court erred by mechanically applying the guidelines

and failing to appreciate that Schwartz did not possess the

intent or the ability to purchase the cocaine, and that he

could not have distributed it in any event as it was

government owed and controlled. Schwartz thus asserts

that his sentence is so unjust and harsh as to violate the

Eighth Amendment. We reject Schwartz’s claim. A review

of the record indicates that the court sentenced each

Appellant individually. Moreover, even assuming that the

court failed to make individualized findings, the sentence

may nonetheless be upheld where, as here, the record

supports the amount of drugs attributed to the defendant.

United States v. Ismond, 993 F.2d 1498, 1499 (11th Cir.

1993). Because the amount of drugs attributed to

Schwartz was proper, his life sentence is neither cruel nor

unusual. See United States v. Willis, 956 F.2d 248, 251

(11th Cir. 1992) (Guidelines do no violate Eighth

Amendment).

App. 37

III. CONCLUSION

Appellants’ sentences and convictions are

AFFIRMED.

App. 38

ERTIFICA F VI

I HEREBY CERTIFY that a true and correct copy

of the foregoing has been delivered by United States Mail

to the Office of the Solicitor General, Washington, D.C.;

Gloria Bedwell, Assistant United States.Attorney, 169

Dauphin Stre ie, Alabama

listed belo day of Fe

Robert G. Levitt, Esquire Domingo Soto, Esquire

Ogden Street Law Office 465 Dauphin Street

Denver, Colorado Mobile, Alabama 36602

John Furman, Esquire John Thornton, Esquire

P.O. Box 49 3430 S.E. Financial Center

Mobile, Alabama 36601 Miami, Florida 33131

Joel Hirschhorn, Esquire G. Richard Strafer, Esquire

2600 Douglas Road, PH-1 2400 S. Dixie Highway

Coral Gables, Florida 33134 Miami, Florida 33133