United States Court of Appeals, Eleventh Circuit
United States Court of Appeals, Eleventh Circuit
United States Court of Appeals, Eleventh Circuit
2d 1413
33 Fed. R. Evid. Serv. 1275
I. BACKGROUND
2
A federal grand jury in the Southern District of Florida handed down a twentyseven count indictment charging Luis Sanchez, Juan Carlos Gonzalez, Eliodoro
Santos, Raciel Rodriguez, Israel Garcia, Tomas Morales, and Jorge Hernandez1
with numerous offenses relating to the trafficking in marijuana. The indictment
included charges of conspiracy and continuing criminal enterprise, as well as
charges of importation, possession with intent to distribute, and possession with
intent to distribute on board a United States vessel in connection with specific
marijuana import ventures.2
cleaned, and made to look as if it had been out legitimately, for example by
putting some shrimp in the hold. For various reasons, only one of the ventures
charged in the indictment was successful. After a jury trial, all defendants were
convicted of the conspiracy counts as well as of offenses related to at least one
importation venture.3
II. DISCUSSION
A. Motion to Suppress
4
On September 23, 1987, federal agents executed a search warrant for the
residence of appellant Luis Sanchez. During the search, agents seized three
address books and a locked briefcase belonging to appellant Juan Carlos
Gonzalez, who is the brother-in-law of Sanchez. The briefcase, which was
opened at the scene, contained $50,000 in United States currency, various
documents which the government introduced as a marijuana bale list, and
Gonzalez' passport. Both Sanchez and Gonzalez appeal the denial of their
motions to suppress evidence seized as a result of the search of Sanchez' house.
1. Sanchez' House
5
Luis Sanchez makes a two-pronged attack on the search warrant and its
supporting affidavit.4 First, he argues that the affidavit was likely to mislead the
magistrate into believing that there was more evidence of criminal activity on
his part than actually existed. The affidavit contained thirty numbered
paragraphs, only the last five of which specifically referred to Luis Sanchez.
(R1:132 Exhibit B) Further, paragraphs 21-25 referred to the activities of a
Julio Sanchez, who is not related to Luis Sanchez. Appellant Sanchez argues
that unless reviewed carefully, the magistrate could unwittingly have assumed
that the Sanchez referred to in paragraphs 21-25 and Luis Sanchez were the
same person, and that the illegalities discussed in paragraphs 23-25 were
attributable to Luis Sanchez.5 Sanchez further argues that the warrant did not
set forth a basis to determine probable cause, so that the good faith exception to
the warrant requirement does not apply. See United States v. Leon, 468 U.S.
897, 923, 104 S.Ct. 3405, 3420, 82 L.Ed.2d 677 (1984). We disagree.
First, we find it unlikely that the magistrate was confused or misled by the
statements regarding the two Sanchezes. The information about Julio Sanchez
was relevant to understanding the circumstances detailed in the affidavit and
was not intermingled with information about appellant Luis Sanchez.
Second, the issuing magistrate clearly had a substantial basis for determining
Even though we find that the search of the Sanchez house was valid, we
consider separately the search of the locked briefcase belonging to Gonzalez
that was found in the house. See United States v. Freire, 710 F.2d 1515 (11th
Cir.1983) (search of briefcase found in co-defendant's car considered separately
from search of car), cert. denied, 465 U.S. 1023, 104 S.Ct. 1277, 79 L.Ed.2d
681 (1984). Gonzalez argues7 that even if the search of Sanchez' house was
valid pursuant to the search warrant, that warrant could not justify the search of
the locked briefcase which the agents knew belonged to Gonzalez. We
disagree.
The items sought in the search of Sanchez' house were documents and United
States currency related to the illegal importation and distribution of controlled
substances. A briefcase could easily contain such items. Assuming without
deciding that Gonzalez had a legitimate expectation of privacy in his locked
briefcase,8 we hold that the valid search warrant for Sanchez' house provided
sufficient authorization for the search of the briefcase found in the house. See
United States v. Morris, 647 F.2d 568, 572-73 (5th Cir. Unit B 1981) (search of
locked jewelry box justified by valid search warrant for premises, though it
would be different if "the objects sought in the warrant were of a size that
would not fit in the box.").9 We therefore affirm the denial of the motions to
suppress.
B. Extrinsic Evidence
10
11
The admission of extrinsic act evidence pursuant to Rule 404(b) is reviewed for
a clear abuse of discretion.13 United States v. Hooshmand, 931 F.2d 725, 736
(11th Cir.1991); United States v. Eirin, 778 F.2d 722, 731 (11th Cir.1985). For
this evidence to be admissible, the government must "show that (1) the
evidence is relevant to an issue other than a defendant's character and (2) the
probative value of the evidence outweighs any prejudicial effect." Hooshmand,
931 F.2d at 736; United States v. Dothard, 666 F.2d 498, 501 (11th Cir.1982);
see also United States v. Beechum, 582 F.2d 898, 911 (5th Cir.1978), cert.
denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979).14 The latter
requirement is essentially that stated in Federal Rule of Evidence 403.15
Beechum, 582 F.2d at 911. Further, this evidence is admissible "if the jury
could reasonably find by a preponderance of the evidence that the defendant
committed the extrinsic act." Hooshmand, 931 F.2d at 736 (citing Huddleston
v. United States, 485 U.S. 681, 690, 108 S.Ct. 1496, 1501, 99 L.Ed.2d 771
(1988)). For the reasons that follow, we find the evidence in this case was
properly admitted.
14
Appellants argue that this evidence is inadmissible under Rule 404(b) because
the evidence is insufficient for the jury to reasonably conclude that Luis
Sanchez committed the act and because the act was not sufficiently related to
the acts charged in the indictment to have any probative value. We disagree.
The testimony regarding the circumstances surrounding the identification of the
people on board the vessel and the chain of custody of that information is
certainly sufficient to allow the jury to reasonably conclude that appellant
Sanchez was on that vessel when it was boarded by customs officials.
Moreover, this incident occurred on August 25, 1985, just days before the time
of the conspiracies charged in the indictment. This evidence is therefore
relevant and admissible to show the "defendant's ability and experience to
execute a fraudulent scheme." Hooshmand, 931 F.2d at 736; see also United
States v. Garcia, 880 F.2d 1277, 1278 (11th Cir.1989). In this context, it is also
material to show Sanchez' intent, knowledge, and common scheme or plan.
15
The "Sea Viking" venture occurred from October 1987 to January 1988, prior
to the end of the conspiracies charged in the indictment. A government witness
testified that he was hired by appellant Sanchez to bring marijuana into the
United States on board the "Sea Viking." The witness testified that Sanchez
gave him the route to follow (passing by Misteriosa Bank), radio frequencies,
and a communications code. This load was intercepted by the Coast Guard at
the end of January 1988, and 15,500 pounds of marijuana were seized. The
court admitted the "Sea Viking" evidence as part of the conspiracies charged in
the indictment, on the basis that none of the co-defendants had affirmatively
withdrawn from those conspiracies.
18
Appellants argue that this evidence was improperly admitted under Rule 404(b)
because it is only relevant to show appellant Sanchez' supposed propensity to
commit the type of crimes with which he is charged, contrary to United States
v. Goodwin, 492 F.2d 1141, 1153 (5th Cir.1974), and its progeny. However,
given that this incident took place within the time frame of the conspiracies
charged in the indictment, and that the modus operandi of this venture was
substantially similar to that of the ventures charged in the indictment, this
evidence was clearly relevant to show motive, intent, knowledge, and common
scheme or plan.
19
Appellants also argue that because only Sanchez among the defendant's was
implicated in the "Sea Viking" venture, it was a wholly separate incident and
not admissible as part of the conspiracies charged in the indictment.16 Whether
the evidence shows one conspiracy or multiple conspiracies is primarily a jury
question. See, e.g., United States v. Stitzer, 785 F.2d 1506, 1518 (11th Cir.),
cert. denied, 479 U.S. 823, 107 S.Ct. 93, 93 L.Ed.2d 44 (1986). There is no
requirement that every member of the conspiracy participate in every
transaction to find a single conspiracy, nor must the evidence show that each
conspirator knew the others or the details of each venture making up the
conspiracy. Id. A single conspiracy may be found where there is a "key man"
who directs the illegal activities, while various combinations of other people
exert individual efforts towards the common goal. Id.
20
In this case, the evidence relating to the "Sea Viking" was properly admitted by
the district court as an uncharged substantive offense which was proof of the
continuing criminal enterprise as well as proof of the underlying conspiracies.
See United States v. Alvarez-Moreno, 874 F.2d 1402, 1408 (11th Cir.1989),
cert. denied, --- U.S. ----, 110 S.Ct. 1484, 108 L.Ed.2d 620 (1990). We believe
the jury reasonably could find that Sanchez and Gonzalez were "key men," and
that Rodriguez, Morales, Santos, and Garcia were participants in the overall
scheme to varying degrees. There is sufficient evidence that each defendant had
a general knowledge of the overall goal of the conspiracies, i.e., the importation
and possession of marijuana with intent to distribute it. The "Sea Viking"
venture was within the time frame of the conspiracies charged in the
indictment, and no evidence was presented that any of the appellants withdrew
from the conspiracies. We therefore find no abuse of discretion by the district
court in admitting this evidence as part of the conspiracies charged in the
indictment.173. Financial Applications of Sanchez and his Wife
21
All of the appellants except Gonzalez raise the issue of the sufficiency of the
evidence with respect to some or all of the counts for which they were
convicted. In evaluating the sufficiency of the evidence, we must view the
evidence in the light most favorable to the government. United States v.
Gutierrez, 931 F.2d 1482, 1488 (11th Cir.1991); United States v. Graziano, 710
F.2d 691, 697 (11th Cir.1983), cert. denied, 466 U.S. 937, 104 S.Ct. 1910, 80
L.Ed.2d 459 (1984). In so doing, we draw all reasonable inferences in favor of
the jury's verdict. Gutierrez, 931 F.2d at 1488; United States v. Thomas, 676
F.2d 531, 535 (11th Cir.1982). In a criminal case, evidence is sufficient to
support a conviction "if a reasonable trier of fact could find that the evidence
establishes guilt beyond a reasonable doubt." Graziano, 710 F.2d at 697.
1. Sanchez
24
Luis Sanchez was convicted of all counts charged in the indictment. He claims
the evidence is insufficient to support his conviction on Counts 20-22, or on
Count 25.
25
26
29
30
(A) which are undertaken by such person in concert with five or more other
persons with respect to whom such person occupies a position of organizer, a
supervisory position, or any other position of management, and
31
32
33
Sanchez correctly notes that the evidence shows that only one of the marijuana
ventures alleged in the indictment was successful. Sanchez then argues that
although he may have realized substantial income or resources from that one
incident, he did not receive substantial income or resources from a "continuing
series of violations." However, the government need not trace substantial
income or resources realized by the defendant during the course of the
enterprise to specific violations; it is sufficient if the government shows, by
either direct or circumstantial evidence, that the defendant derived substantial
income or resources from his operation of the entire enterprise. See United
States v. Draine, 811 F.2d 1419, 1421 (11th Cir.), cert. denied, 484 U.S. 827,
108 S.Ct. 94, 98 L.Ed.2d 55 (1987); Chagra, 669 F.2d at 256. Thus, a
defendant's acquisition of substantial income or resources from a continuing
criminal enterprise may be demonstrated either by proof that defendant
acquired substantial resources from just one of the enterprise's operations, see
Graziano, 710 F.2d at 697-99 (one successful operation by the enterprise
involving 4,800 pounds of marijuana sufficient), or by proof of the sudden
acquisition or expenditure of large sums of money, even though the source of
these funds is not specifically traced to the illegal acts charged in the
indictment. Lattimore, 902 F.2d at 903; Chagra, 669 F.2d at 256.
34
2. Rodriguez
35
Rodriguez argues that the evidence was insufficient to support his convictions
for Counts 16-19. Count 16 involved the unsuccessful venture of the "Ross and
Bess" in March 1986. Counts 17-19 deal with importation and possession of
marijuana with intent to distribute involving the vessel "Lady L." The
government again concedes that as no Pinkerton instruction was given, there
was insufficient evidence to support Rodriguez' conviction on Counts 17-19.
Brief of the United States at 56. We therefore VACATE the conviction of
Raciel Rodriguez on Counts 17, 18, and 19.
36
As to Count 16, the record shows that Rodriguez came to Miami with Sanchez
to pick up Acosta, a crew member for the "Ross and Bess," in order to take him
to Key West for the unsuccessful March 1986 marijuana run, as they had for a
previous "Ross and Bess" venture. Rodriguez and Sanchez also met with
Acosta and the other crew members once they had reached Key West prior to
their departure. Since Rodriguez was charged with aiding and abetting (18
U.S.C. Sec. 2), the government was only required to prove that he voluntarily
associated himself with the venture and sought to make it succeed. United
States v. Leavitt, 878 F.2d 1329, 1338 (11th Cir.), cert. denied, --- U.S. ----, 110
S.Ct. 415, 107 L.Ed.2d 380 (1989); United States v. Collins, 779 F.2d 1520,
1528 (11th Cir.1986). Given Rodriguez' proven extensive prior involvement
with the enterprise, the jury was entitled to infer that he knew of the March
1986 "Ross and Bess" venture and acted with the intent to make it succeed. See
Leavitt, 878 F.2d at 1338. We therefore find the district court properly denied
Rodriguez' motion for acquittal.
3. Santos
37
Appellant Santos argues that there was insufficient evidence to sustain his
conviction on Counts 2, 3, 10, 12, and 17 of the indictment. We disagree.
38
Counts 2 and 3 charged Santos with conspiracy to possess marijuana with intent
to distribute and conspiracy to possess marijuana with intent to distribute
marijuana on board United States vessels, respectively. Santos does not
challenge the sufficiency of the evidence as to the conspiracy charged in Count
1, conspiracy to import marijuana. Because of the factually overlapping and
intertwining nature of these conspiracies, none of the conspiracies could have
existed without the others, and none of the people involved in orchestrating the
importation conspiracy reasonably could have isolated himself from a
conspiracy involving the method of importation--possession of large quantities
of marijuana (possession with intent to distribute) and possession of large
quantities of marijuana on board a United States vessel (possession with intent
to distribute on board a United States vessel).
39
40
Santos also challenges his convictions for aiding and abetting the possession of
marijuana in connection with both the final "Ross and Bess" venture (Counts 10
and 12) and the "Lady L" venture (Count 17). The evidence reflects that Santos
participated in the offloading of marijuana from the "Ross and Bess," and
personally distributed proceeds from that successful venture to the "owner" of
the boat. Further, he took crew members for the last "Ross and Bess" venture to
meet with Sanchez and Rodriguez in Key West before they left for the ill-fated
marijuana run. Those same crew members became the crew for the "Lady L"
after the "Ross and Bess" sank. Santos also recruited the captain for another
vessel, the "Monica," which acquired one half of the marijuana from the "Lady
L" as part of a prearranged plan. Before the "Monica" left port, Santos drove
the captain and two of the crew members to Miami to meet with Sanchez in
anticipation of the trip. Given Santos' extensive involvement with the
enterprise, the evidence is sufficient for the jury to find Santos voluntarily
associated himself with the "Ross and Bess" and "Lady L" ventures and
actively sought to make them succeed. See Leavitt, 878 F.2d at 1338.
4. Garcia and Morales
41
42
Garcia argues that the evidence was insufficient to support his conviction on
Counts 1-3, the conspiracy counts, and 10-12, regarding the second "Ross and
Bess" venture. We disagree.
43
44
organization in connection with the second "Ross and Bess" venture, and
arranged a meeting between them and the key organizers, Sanchez and
Rodriguez. Moreover, although there is no evidence as to whether Garcia was
present at this meeting, he clearly facilitated its occurrence by allowing the
principals to use his residence. There is sufficient evidence that Garcia knew of
the conspiracies charged in Counts 1, 2, and 3, and that he voluntarily
participated in them. Also, he was clearly aware of the second "Ross and Bess"
venture, voluntarily associated himself with the venture by recruiting crew
members, and acted as a facilitator in order to make the venture succeed.
45
Morales argues that the evidence was insufficient to support his conviction on
Counts 1-3, the conspiracy charges, or on Counts 4-6, pertaining to the vessel
"Bobby." The evidence shows that Morales recruited Richard Washington to
captain the vessel "Aquarius" for the purpose of making a marijuana run, and
that Morales handed Washington and his friend $6,000 in front money which
Sanchez had agreed to pay them for smuggling the marijuana. The evidence
also shows that Morales recruited two crew members for the "Bobby," Luis
Ramirez and Walter Keith, and offered to pay James Prather $50,000 to be the
captain. Morales gave Ramirez $300 front money and told him where they
would be picking up the marijuana. Before the "Bobby" left port, Morales told
Ramirez and Keith that the more marijuana they loaded aboard, the more they
would be paid. Further, Morales offered to speak to Sanchez about getting some
money for Ramirez after the "Bobby" venture failed. This evidence is clearly
sufficient to support Morales' convictions for conspiracy, as well as for the
underlying substantive offenses involving the "Bobby."
D. Jury Instructions
46
47
First, it is well settled that terms which are within the common understanding
of the jury need not be defined in the jury instructions. Id. at 675 n. 78 (and
cases cited therein). "Attempt" is not an overly technical or ambiguous term,
nor is it beyond the common understanding of the jury. Id. It is unlikely that the
court's failure to define "attempt" confused the jury or resulted in a grave
miscarriage of justice. We find no plain error in the court's failure to define
"attempt" in its jury instructions.
49
50
Lastly, the district court's instruction that none of the trial attorneys were
associated with the attorney who was allegedly part of the criminal enterprise
was requested by counsel for Garcia and was acquiesced in by counsel for all
other defendants, including trial counsel for Sanchez. Nevertheless, Sanchez
argues on appeal that the instruction had the effect of telling the jury that it
should credit the evidence of the involvement of the attorney, which was
damaging to Sanchez, and thereby lessened the burden on the government to
prove every element of its case. We disagree. At most, the instruction may have
Appellant Garcia argues that he was severely prejudiced by being tried with the
other defendants because the majority of evidence presented at trial had nothing
to do with him.20 In order to successfully challenge the denial of a motion for
severance, the appellant must show that the trial court abused its discretion,
Gutierrez, 931 F.2d at 1491, i.e., that "he was unable to receive a fair trial and
suffered compelling prejudice." Leavitt, 878 F.2d at 1340. To show compelling
prejudice, the appellant must prove "that the jury could not follow the trial
court's instructions and separate the evidence relevant to each appellant." Id.
Generally, co-conspirators should be tried together; cautionary instructions to
the jury to consider the evidence as to each defendant separately are presumed
to guard adequately against prejudice. Id. Such cautionary instructions were
given in this case. Garcia points to nothing in the record to demonstrate
prejudice. Indeed, as both Garcia and Rodriguez were acquitted on three of the
counts with which they were charged, the jury in this case was clearly able to
separate the evidence with regard to the different defendants. We therefore find
no abuse of discretion.
52
Gonzalez argues, and the government concedes, Brief of the United States at
90, that his convictions on Counts 1 through 3 for conspiracy merged with his
conviction for continuing criminal enterprise in Count 26.21 See Rosenthal, 793
F.2d at 1246 (citing United States v. Harrington, 761 F.2d 1482, 1487 (11th
Cir.1985)). We therefore VACATE the convictions on Counts 1, 2 and 3 of
Juan Carlos Gonzalez.22
53
Lastly, the judgment for Tomas Morales signed by the trial court was labelled
"Judgment Including Sentence Under the Sentencing Reform Act." Morales
argues, and the government concedes, Brief of the United States at 90, that this
was error, given that this is a pre-Sentencing Reform Act case. We therefore
VACATE Morales' sentence and REMAND for resentencing consistent with
this opinion.23
III. CONCLUSION
54
convicted of these counts. Rodriguez was charged but acquitted of these counts.
Count 16 charged attempted possession with intent to distribute on board a
United States vessel (21 U.S.C. Secs. 955a(a), 955c & 18 U.S.C. Sec. 2)
relating to an ill-fated venture involving the "Ross and Bess" in March 1986.
Sanchez, Rodriguez, Gonzalez, and Santos were convicted of this count.
Counts 17, 18, and 19 charged the same appellants as Count 16 with crimes
relating to the use of the "Lady L": possession with intent to distribute on board
a United States vessel (21 U.S.C. Sec. 955a(a) & 18 U.S.C. Sec. 2); attempted
importation (21 U.S.C. Secs. 952(a), 963 & 18 U.S.C. Sec. 2); and attempted
possession with intent to distribute (21 U.S.C. Secs. 841(a)(1), 846 & 18 U.S.C.
Sec. 2). The "Ross and Bess" sank during the unsuccessful venture in March
1986, and the crew eventually ended up on the "Lady L," which then took part
in another unsuccessful venture. All were convicted of these counts.
Counts 20, 21, and 22 charged the same appellants, Sanchez, Rodriguez,
Gonzalez, and Santos with crimes in connection with an unsuccessful
importation using the vessel "Melissa" in October 1986: possession with intent
to distribute on board a United States vessel (21 U.S.C. Sec. 955a(a) & 18
U.S.C. Sec. 2); attempted importation (21 U.S.C. Secs. 952(a), 963 & 18 U.S.C.
Sec. 2); and attempted possession with intent to distribute (21 U.S.C. Secs.
841(a)(1), 846 & 18 U.S.C. Sec. 2). All were convicted of these counts.
Counts 23 and 24 charged only Gonzalez with violation of 18 U.S.C. Sec. 1952
on March 17, 1986 and October 9, 1986, respectively. He was convicted of
these counts.
Counts 25, 26, and 27 charged Sanchez, Gonzalez, and Hernandez respectively,
with engaging in a continuing criminal enterprise (21 U.S.C. Sec. 848). Both
Sanchez and Gonzalez were convicted of these counts.
3
Defendants Sanchez, Santos, Morales, and Rodriguez argue that 21 U.S.C. Sec.
955a(a) (possession of marijuana with intent to distribute) and 21 U.S.C. Sec.
841(a)(1) (possession of marijuana with intent to distribute on board a United
States vessel) prohibit the same conduct, such that their convictions for both
offenses constitutes double jeopardy. This court has already considered and
rejected this argument in United States v. Souder, 782 F.2d 1534, 1539 (11th
Cir.1986)
The government conceded that Sanchez has the right to challenge the search of
his home. Gonzalez also attempted to challenge the search, claiming that he
was living in the house because he had separated from his wife a week before
the search. The magistrate found that Gonzalez' testimony was not credible, that
Although Sanchez in his brief refers to "false and reckless statements," Brief of
Sanchez at 48, he has produced no evidence that any of the statements in the
affidavit were false in any respect. Indeed, he does not appear to be claiming
that any statement in the affidavit was untrue, only that the overall effect could
be misleading. Therefore, Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57
L.Ed.2d 667 (1978), and United States v. Kirk, 781 F.2d 1498 (11th Cir.1986),
cited by Sanchez, which deal with challenges to the veracity of the affidavit, are
inapplicable to this case
The affidavit showed that: (1) a known large-scale drug trafficker, Ugalde, was
looking for "something" from appellant Sanchez at a time when he was
searching for drugs; (2) in a cryptic conversation about Ugalde getting
"something" from Sanchez, Ugalde and Sanchez consciously avoided naming
the subject of their conversation, but they clearly understood each other; (3) this
conversation indicated Sanchez and Ugalde had had dealings of this type in the
past; (4) Sanchez intended to do business with Ugalde at Sanchez' house; (5)
Sanchez had a very large amount of cash in his house in banded stacks in a box;
(6) when Ugalde learned of this money, he was not surprised and suggested
stealing some of it because it was unlikely to be missed
Sanchez also asserts standing to challenge the search of the locked briefcase
because it was in his home and therefore in his possession. However, Sanchez'
acknowledgement to the district court, through his attorney, that the briefcase
did not belong to him removes any legitimate expectation of privacy which
might otherwise have been accorded to him. See United States v. McBean, 861
F.2d 1570, 1574 (11th Cir.1988). Moreover, by explicitly stating to the district
court that he was not objecting to the introduction of the briefcase, Sanchez
waived his right to raise the issue here. United States v. Valdes, 876 F.2d 1554,
1558 n. 10 (11th Cir.1989)
the property searched or seized. Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct.
421, 430, 58 L.Ed.2d 387 (1978)
9
Decisions of the former Fifth Circuit, Unit B, are binding precedent in this
circuit. Stein v. Reynolds Securities, 667 F.2d 33, 34 (11th Cir.1982)
10
11
12
Prior to trial the government filed a notice of intent to offer evidence pursuant
to Fed.R.Evid. 404(b). Appellants argue for the first time on appeal that this
notice was insufficient because it did not state a valid purpose. We decline to
address this issue as it was not raised in the district court. United States v.
Hosford, 782 F.2d 936, 938 n. 1 (11th Cir.), cert. denied, 476 U.S. 1118, 106
S.Ct. 1977, 90 L.Ed.2d 660 (1986)
13
The government argues that we should review this evidence under the plain
error standard because appellants Sanchez and Garcia did not object at trial to
this evidence based on Rule 404(b), but only on hearsay and relevancy grounds.
The government also states that the rule regarding objections in this case was
that each defendant had to object individually. We believe appellants'
objections and argument on this evidence was sufficiently clear to apprise the
district court and opposing counsel that appellants objected on the basis of
Rules 403, 404(b), hearsay, and relevancy. We note that part of the test for
determining the admissibility of evidence under Rule 404(b) is its relevancy to
an issue other than the defendant's character. Moreover, the record shows that
appellants are clearly correct that the rule at trial in this case was that any
objection by one defendant was presumed to be joined in by all defendants
unless they specifically exempted themselves from that objection. (R8:67;
R15:1101-02). There was no requirement that each defendant make his own
objection
14
Decisions of the former Fifth Circuit handed down before October 1, 1981 are
binding precedent in this circuit. Bonner v. City of Prichard, 661 F.2d 1206,
1209 (11th Cir.1981) (en banc)
15
16
17
Appellant Santos further argues that the evidence at trial shows that more
conspiracies existed than were charged in the indictment, and that the evidence
did not show that Santos participated or was even aware of the separate
conspiracies. As appellants neither requested nor received jury instructions on
the issue of whether single or multiple conspiracies existed, we will reverse
only on a showing of plain error. United States v. Meester, 762 F.2d 867, 880
(11th Cir.), cert. denied, 474 U.S. 1024, 106 S.Ct. 579, 88 L.Ed.2d 562 (1985).
Because we find the jury could reasonably find single conspiracies, with
Sanchez and Gonzalez as "key men," we find no variance between the number
of conspiracies charged in the indictment and the evidence produced at trial.
United States v. Stitzer, 785 F.2d 1506, 1518 (11th Cir.), cert. denied, 479 U.S.
823, 107 S.Ct. 93, 93 L.Ed.2d 44 (1986)
18
The government claims that Sanchez did not object at trial to one piece of this
evidence, GX 88, and that his objection to the other, GX 90, was based on
grounds other than Rule 404(b). Upon review of the record, we conclude that
there was a proper objection to GX 88 (R15:1193), and that the objection and
argument made by appellant at trial is consistent with his position before this
court (R15:1126-53)
19
Both Garcia and Morales claim they renewed their motions at the close of all
evidence. However, the record shows that only Rodriguez renewed his motion
at the close of all evidence. While the record indicates that the procedure for
objections at trial was that one defendant's objection stood for all, see supra
note 11, we can find no evidence in the record of an agreement that motions
would also be registered jointly. Indeed, in this case, each separate defendant
made a motion for judgment of acquittal at the close of the government's case
20
Generally, an appellant may not assert theories on appeal that were not raised at
trial or preserved by a timely objection. United States v. Hosford, 782 F.2d 936,
938 n. 1 (11th Cir.), cert. denied, 476 U.S. 1118, 106 S.Ct. 1977, 90 L.Ed.2d
660 (1986). Although in his brief Garcia states that he moved for severance at
various times during the course of the trial, he fails to cite to the record in
support of this contention and we have been unable to locate any formal motion
pursuant to Fed.R.Crim.P. 14 in the record. Counsel did, however, frequently
comment during trial that much of the evidence went only to the other
defendants and that he felt this prejudiced his client. We therefore choose to
address this claim
21
The district court has already vacated the conspiracy convictions of Luis
Sanchez for this reason
22
We reject, however, Gonzalez' argument that the trial court's denial of his
attorney's motion to withdraw violated Gonzalez' sixth amendment right to
effective assistance of counsel because his attorney had a conflict of interest
and because he and his attorney were embroiled in an irreconcilable conflict.
We see no abuse of discretion by the trial court in refusing to grant such a
motion so close to the time of trial
23