Professional Documents
Culture Documents
___________________
____________________
Before
Breyer, Chief Judge,
___________
Cyr and Boudin, Circuit Judges.
______________
____________________
others
were
charged
Efrain De La Cruz,
in a
one-count
Luis Torres
indictment
with
841,
846.
Torres
intent to distribute.
pleaded guilty; De La
18
Cruz was
We affirm.
events
in this
case are
part
of a
larger story
law enforcement
operation,
Colombian
agencies.
drug
the course
of
delivered
615
Alvarez who
was
dealers
kilograms of cocaine
to a
secretly cooperating
In
Massachusetts
while awaiting
drug dealers.
In describing
directions from
it in
the Colombian
confine
in the
United States
on or
about
Alvarez
made contact
it was agreed
at 5
Inn
p.m. on
in
with a
man purporting
Taunton,
12, in
the parking
Massachusetts.
-3-3-
Two
to be
would take
lot of
undercover
officers--FBI
Agent Dillon
and
Providence
Police
Officer
with three
lot.
occupants
De La Cruz was
driving slowly
through
the
the agents,
drug
transfer.
with
him from
but
that
and discussed
Torres said
New
that he had
the mechanics
Newton, Massachusetts.
drive to
Newton
with his
It was agreed
companions to
of the
Torres, De La Cruz
when he
and LaPaix
hours
later,
around
Holiday Inn.
p.m.,
Agent
Dillon
Torres
approached their car and told them that he had the vans;
but
he said that
the
lot,
having seen
a police car
driving through
in the drug
trade to refer to an underling such as a bodyguard or driver-to move the vans out of the lot.
-4-4-
next to him.
agents' car
van
The red
FBI
had located
the
shipment in
warehouse in
recording equipment.
caravan of vehicles
front.
Agent
Within
arrived at the
Dillon, seeking
half
with video
an hour,
to prevent
too many
the
in
of the
avoid attracting
De La
Cruz, who
left
the red
van and
drove the
Cadillac
Cruz drove
slowly through
across the
parked.
This
street
to an
this
lot, which
of people.
unlit
He then drove
vacant lot
was
where
warehouse.
he
De La
Cruz left the Cadillac and started back toward the warehouse.
He was
then arrested by
FBI agents.
When
arrested, he was
-5-5-
Meanwhile, after
lot in
De La Cruz left
the Cadillac, Torres backed the blue van into the bay
Rodriguez and
The three men removed the rear seats and floor panel
the van.
were
compartment,
loaded
into
the
After about
the
70 kilograms
three
men
were
arrested.
Torres,
when
arrested,
had
in his
De La
Cruz's beeper.
Subsequently,
all
five
of
those
present
at
the
In
early November
1991, some
weeks before
persuading it
participant.
for
He made
treat him
at
for purposes
sentencing as
and that he
minor
to testify
the proffer,
involved.
He
LaPaix was
responded
that
asked how
they were
De La
Cruz
long-time
payment for
-6-6-
Prior to
on November
the indictment
then went
following
Monday.
Immediately before
18, 1991.
as to
to trial.
Tavares.
The
De
On November 22,
La
a
against De La
In
the court
summary
government's objection,
subject to production
(1963).
The
of
LaPaix'
the court
contents of LaPaix'
proffer, so
Over
under Brady v.
_____
government then
proffer.
the
to be
disclosed to
far as it
De La
83
Cruz the
concerned De
Cruz, as follows:
[During the drive from New York to Boston] LaPaix
contacted Efrain De La Cruz. And De La Cruz drove
LaPaix and Torres to the Holiday Inn in Taunton for
the meeting with Special Agent Dillon . . . . As
to why there were so many telephone calls between
De La Cruz and LaPaix prior to the pickup of the
La
-7-7-
unaware
childhood
of
and
was
the
questions
Fifth
Amendment
other than
objected
merely
helping out
his
and
refused
name and
to
address.
answer
De
La
all
Cruz
guilty plea.
claim
the drugs
defense that he
LaPaix was
invoked
of
examination
LaPaix not
observing
could produce
merely in
testimony
that
government
would
cross-
inculpate
but in
other
transactions.
On
guilty.
and Torres to
court,
235 months.
De La Cruz attacks
sufficiency of
sever or
In this
evidence, the
denial of
his motion
to
treatment
address
the
We
the claims of
adequacy of the
evidence as to
his knowledge of
The evidence,
considered
in
the light
most
F.2d 707, 711 (1st Cir. 1992), cert. denied, 113 S. Ct. 1005
_____________
(1993),
shows
accompanying
that De
three
(Torres, LaPaix
La
other
Cruz appeared
men
and Rodriguez);
at
involved in
that De
La
both meetings
the
drug
Cruz drove
deal
to
Taunton
took
location to another
cellular telephone
of the
beeper was in
LaPaix
drug trade;
and a beeper--both
that the
Torres' possession;
had exchanged
various
well known
contact number
and that De
telephone calls
for the
La Cruz
and
in the
days
beyond a
knowing
participant
Any
one
fact
alone
combination--presence
in the
may
at
that De
jury to
La Cruz
was a
conspiracy to
transport drugs.
be
away;
the
explained
scene,
suspicious
but
the
conduct,
-9-9-
of the parts.
counsel to suggest,
It was
based on fragments of
evidence, that De
old friend
LaPaix.
It
is not surprising
that the
hundreds
of
promoted
the sting
reason
tape
recordings
with
conversations.
True,
cocaine, nor is
existence.
the Colombians,
De La
knowledge
FBI
but
"rollo" should be
there is
or touched
evidence that he
may be
as Alvarez
no
mentioned in such
there direct
______
But
made by
appeared in the
based on
knew of
the
its
circumstantial
proper inference.
supplied to the
for drawing
inference
was rational.
De La
withheld
obligated
about
disclose
is that the
LaPaix'
under
the
at all.
to
government wrongly
proffer
Brady
_____
that
it
doctrine.
was
The
It now argues
LaPaix excused
the
from
(1st Cir.
1988),
and that
in
any case
LaPaix'
lawyer
-10-10-
We need
first point or
simple reason
of the
proffer to De
La Cruz
the factual
dispute on the
well
on the
second, for
the
employing
Devin,
_____
the material to
918
proffer,
counsel
290 (1st
Cir.
assuming its
contents
were previously
La
Cruz, did
1990).
not reveal
any
unknown to
new line
is a
of
No evidence was
Here LaPaix'
United States v.
______________
F.2d 280,
for De
from
problem De La
That he
Cruz would
have
In short, we find
erred
in
sustaining
Amendment.
LaPaix'
This claim
aspect of De La
is
invocation
probably
of
the
the most
Fifth
troublesome
in tension two
____________________
1We do not formally resolve the government's claim that
can avoid Brady by promising confidential treatment to
_____
someone it interviews; but we are skeptical of any such
blanket claim and would expect the government affirmatively
to present the issue to the district court if otherwise
exculpatory material were withheld on this ground.
it
-11-11-
should
be
protected
conspiracy at
against
being
incriminate him.
compelled
The core
could not
to
of De
guilty to
incriminate himself
is uncertain
what
LaPaix would
have
said had
he
that
LaPaix
The jury
exculpation in
light of the
testimony was
knowledge
exculpated
his
friend
any such
against De
relevant and
Since
have
decide.
would
it is surely
La Cruz.
But the
credibility is
the government's
evidence
men and
hoped-for
La
to
Cruz'
whatever
Constitution
the
LaPaix
was
cost
to
De
entitled
La
to
Cruz,
invoke
under
his
Fifth
on-the-spot judgment as
incrimination
is entitled
overruled
unless
it is
to deference
to the risk
. .
The
of self-
and "should
'perfectly clear`
the
not be
that the
-12-12-
answers
[sought
from
the
witness]
'cannot
possibly`
incriminate."
In
this case, we
compelling
LaPaix
think the
district
to
testify
could
threaten
to
incriminate him.
LaPaix had not been sentenced at the time of De La Cruz'
trial, and "the convicted but unsentenced defendant retains a
legitimate
protectable
matters that
could affect
Fifth
Amendment
his sentence.
LaPaix testified
involved
that he
interest"
as
to
United States
_____________
v.
had recruited
De La
Here,
Cruz and
of the drugs,
3B1.2, and could even have led the court to classify him as
a "supervisor," and enhance his sentence.
U.S.S.G.
comment note
of accomplices" as
3B1.1 &
put LaPaix
drug
at risk
transactions.
challenge LaPaix'
of disclosing
The
his involvement
government,
testimony exculpating
also
De
in
order
La Cruz,
in
to
would
-13-13-
sought to
question LaPaix
vigorously
The
aim would be
to undercut
De La
LaPaix'
have
matters
if this
government
can
and if
In
cross-examination on collateral
be done
doing
or even
without
so will
unduly limiting
preserve the
the
defendant's
he had
told De La
Cruz of the
cocaine--the
____________________
2See United States v. Esparsen, 930 F.2d 1461, 1469-70
___ ______________
________
(10th Cir.), cert. denied, 112 S. Ct. 882 (1991) (collecting
____________
cases).
United States v. Pardo, 636 F.2d 535 (D.C. Cir.
______________
_____
1980), is the classic example. In United States v. Zirpolo,
_____________
_______
704 F.2d 23, 26 (1st Cir.), cert. denied, 464 U.S. 822
_____________
(1983), this court declined to decide whether it would follow
Pardo.
_____
-14-14-
have been
from `whitewashing'
unchallengeable
F.2d
each
for one
other
to prevent coconspirators
through
reason or
at 26 (quoting United
use
of
testimony
another."
Zirpolo, 704
_______
States v. Lowell,
______________
962
(3d
Cir. 1981)).
defendant
from offering
conspirator
is
Cf.
___
is
nothing
such testimony
willing to
testify,
is more
important
cross-examination
case.
There
______
Fed.
R.
Evid.
that
if the
but
prevents
alleged co-
the safeguard
than usual
804(b)(3)
of
in such
(excluding
hearsay
do
not
properly
be
think that
in
preserved by
this
case
In short,
the privilege
cabining the
could
government's cross-
examination.
Of course,
seeking
6003,
formal immunity
for the
witness under 18
U.S.C.
the dilemma by
Angiulo,
_______
cases),
privilege
897
F.2d
1169, 1191
been
U.S.
routinely
(1st
845 (1990).
invoked
by
(collecting
Indeed, the
alleged
-15-15-
F.2d at 109.
coE.g.,
____
A trial
that
defense
misconduct
of
testimony
the
had
prosecutor
threatening to prosecute
been
thwarted
(e.g.,
_____
the witness if
by
if it
by
the
gratuitously
he testifies).
No
must be
remembered
to
very
the
same
defendant is available
12,
protecting
defendant could
exculpatory
to himself
that the
facts,
1993).
defendant
himself
against
for
as a witness."
"[a]
Gacy
____
v.
(7th Cir.
declines to
self-incrimination
also
testify,
on
cross-
invokes
his
testifying and
immunity to
denial of
own
so is
Fifth
Amendment
the prosecutor
the witness.
rights
who declines
to
avoid
to grant
There may
miscarriage of justice.
La
Cruz'
final
argument,
mistrial or a
apart
from
sentencing
appear for
trial.
guilt from
videotape of
the
flight,
and there
De
is no
shown
so the
link with
reason why
have been
he should
-16-16-
affected by the
inference.
Finally, the
court offered
to
can
any
prejudice
testimony, completed
left the trial.
conclude
We have
to
Rodriguez'
fully cross-examined,
own
when he
and
but not
be traced
theory of defense.
referred to De La
Cruz.
Indeed,
In any
Rodriguez
so
the sentences
conspirator
objections of De
imposed
is responsible
upon them.
not only
handled or saw
he
could have
reasonably
conspiracy
he joined.
comment n.1;
(1st
The
by the defendant is a
unless
to be
embraced
by the
1015, 1023
finding as
to the
clearly erroneous.
he actually
district court's
embraced by the
A narcotics
for drugs
See U.S.S.G.
___
United States v.
_____________
Cir. 1992).
quantity
foreseen
La Cruz and
be disturbed
-17-17-
to sentencing,
including the
factual issues
role played
by the
defendant in
the conspiracy.
United States
_____________
v. Tabares, 951
_______
entire 240
sought
kilograms of
cocaine that
the
Lucho group
De La Cruz argues in
What
the warehouse.
a very
large quantity
was involved:
court noted,
De La Cruz was
part of a
that included
two vans
Strictly
destined to
as the
district
carry away
the cocaine
large quantity
of
drugs, but
happens
for distribution
not to
know
the
precise amount, pretty much takes his chances that the amount
actually
involved will
theory,
no amount at all
be
quite large.
could properly be
On De
La
Cruz'
assigned to him
-18-18-
a large
special circumstances--we
De La Cruz
decision to
treat
conspiracy,
resulting in
U.S.S.G.
have
him
3B1.2(b).
been classed
as
a
a
"minor
two-level downward
as a
"minimal participant"
3B1.2(a).
the
he should
and given
The guidelines
in
adjustment.
the
participant"
court's
"infrequently"; and
say that
they also
smuggling
transaction involving
a small
U.S.S.G.
the drivers
cache
in a caravan seeking to
of narcotics.
He fits
amount of
a single
drugs."
nor the
manager or
was
supervisor"
enhancement is
degree of
by contrast,
found to
and
be an
accorded
U.S.S.G.
"organizer,
a
two-level
3B1.1(c).
This
"exercised some
the commission of
support the
F.2d 1217,
district court's
role was
-19-19-
equivalent to that of
the
charge of
arrival of the
to Torres'
argument in
this court,
the fact
Torres may have been working for Lucho does not prevent
to
highest ranking
be a
manager or
member of a
supervisor."
in
United States v.
______________
Savoie,
______
Sostra,
______
is not
on point.
United States v.
_____________
role in
the drug
transactions
potential
"nothing
was
buyers
in the
that
and
of
"steerer,"
sellers.
record
to show
Id.
__
that
bringing
at
733.
together
There
he [Sostra]
was
exerted
and
we conclude
Torres'
. . . ."
Id.
__
that De
La
sentence
affirmed.
________
-20-20-
were
Cruz' conviction
proper
and
must
and
be