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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1994

## Text

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 | 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1332%3A1. Public record. Not legal advice.