United States v. Quintero

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit

10-25-1994

USA v. Quintero
Precedential or Non-Precedential:

Docket 93-1377

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 UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 93-1377; 93-1386; 93-1389
93-1415; 93-1416; 93-1572

UNITED STATES OF AMERICA

v.

MELBA QUINTERO

Appellant in 93-1377.

MARIA RODRIGUEZ

Appellant in 93-1386.

SANTIAGO GONZALEZ

Appellant in 93-1389.

JOSE GONZALEZ-RIVERA
a/k/a "Tosti", Aberto Otero

Jose Gonzalez-Rivera

Appellant in 93-1415.

JOSE CRUZ

Appellant in 93-1416.

JOAQUIN MORGADO

Appellant in 93-1572.

On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Criminal Action Nos. 92-00055-01; 02; 05; 08; 10; 12)

Argued: March 24, 1994
Before: HUTCHINSON, ROTH and ROSENN, Circuit Judges
 (Opinion Filed October 25, l994 )

Michael R. Stiles
United States Attorney
Walter S. Batty, Jr. (Argued)
Assistant United States Attorney
Thomas H. Suddath, Jr. (Argued)
Assistant United States Attorney
Carlos A. Martir, Jr.
Assistant United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Attorneys for Appellee

Mark S. Greenberg, Esquire
Stephen R. LaCheen & Associates
3100 Lewis Tower Building
15th & Locusts Sts.
Philadelphia, PA 19102
Attorney for Appellant Quintero

Mark D. Mungello, Esquire (Argued)
103 LaCosta Drive
Blackwood, NJ 08012
Attorney for Appellant Rodriguez

James P. McFadden, (Argued)
Assistant Federal Defender
Elaine DeMasse
Senior Appellate Counsel
Maureen Kearney Rowley
Chief Federal Defender
Defender Association of Philadelphia
Federal Court Division
437 Chestnut Street
Lafayette Building, Suite 800
Philadelphia, PA 19106-2414

Attorneys for Appellant Gonzalez
Christopher D. Warren, Esquire (Argued)
DeStefano & Warren, P.C.
437 Chestnut Street
Lafayette Building, Suite 1006
Philadelphia, PA 19106
Attorney for Appellant Gonzales-Rivera
William T. Cannon, Esquire (Argued)
Law Offices of William T. Cannon
12 South 12th Street
2540 PSFS Building
Philadelphia, PA 19107
Attorney for Appellant Cruz

Lawrence S. Krasner, Esquire
Krasner & Restrepo
924 Cherry Street, 2nd Floor
Philadelphia, PA 19107
Attorney for Appellant Morgado

OPINION OF THE COURT

ROTH, Circuit Judge:

Defendants Melba Quintero, Jose Gonzalez-Rivera, Maria

Rodriguez, Santiago Gonzalez, Joaquin Mordago, and Jose Cruz

appeal from judgments entered in the United States District Court

for the Eastern District of Pennsylvania after a jury trial in

which they were all convicted of conspiracy to distribute in

excess of five kilograms of cocaine, in violation of 21 U.S.C. §

846 (Count One). In addition to the conspiracy count, each of

the six defendants was convicted of other counts in the twenty-

eight count indictment.

The trial lasted twenty days during which the

government presented evidence consisting of electronic

surveillance, audio recordings, video recordings, documents

seized from defendants at the time of their arrest, and testimony
of numerous law enforcement witnesses and of an expert in

interpreting drug jargon. The government also presented the

testimony of Cristobal Paz, one of the defendants' co-

conspirators, who had pled guilty and who testified as a

cooperating witness for the prosecution.

In addition to the conspiracy count, the jury found

Gonzalez-Rivera guilty of one count of engaging in a continuing

criminal enterprise ("CCE") in violation of 21 U.S.C. § 848

(Count Two), two counts of possession with intent to distribute

cocaine in violation of 21 § U.S.C. 841(a)(1) (Counts Five and

Six), and one count of use of a communication facility to

facilitate the conspiracy in violation of 21 U.S.C. § 843(b)

(Count Eight). Rodriguez was convicted of one count of use of a

communication facility to facilitate the conspiracy (Count

Thirteen). Gonzalez was convicted of two counts of distribution

of cocaine in violation of 21 U.S.C. § 841(a)(1) (Counts Fourteen

and Sixteen) and one count of use of a communication facility to

facilitate the conspiracy (Count Twenty-One). The jury also

found that, pursuant to 21 § U.S.C. 853, Gonzalez must forfeit

certain property to the United States (Count Twenty-Five).

Quintero was convicted of three counts of use of a communication

facility to facilitate the conspiracy (Counts Seventeen,

Nineteen, and Twenty), one count of distribution of cocaine

(Count Twenty-Two), and one count of possession with intent to

distribute cocaine (Count Twenty-Three). Mordago was convicted
of one count of use of a communication facility to facilitate the

conspiracy (Count Eighteen). Cruz was convicted of one count of

possession with intent to distribute cocaine (Count Five).1

On appeal, all of the defendants, except Cruz,

challenge the district court's refusal to suppress certain

telephone surveillance tapes which comprised part of the

government's evidence. Defendants assert that the tapes were not

sealed immediately after the final authorization order expired,

1
. As stated, each defendant was convicted on Count One of
conspiracy to distribute in excess of five kilograms of cocaine.
Based on these convictions, the defendants received the following
sentences. Gonzalez-Rivera was sentenced to life imprisonment on
each of Counts One, Two, Five, and Six; 48 months imprisonment on
Count Eight to run concurrently with the life terms; and a $250
special assessment. Rodriguez was sentenced to 144 months
imprisonment on Count One; 48 months imprisonment on Count
Thirteen to run concurrently with the earlier count; five years
supervised release; and a $100 special assessment. Gonzalez was
sentenced to 240 months imprisonment on Counts One, Fourteen, and
Sixteen; 48 months imprisonment on Count Twenty-One to run
concurrently with the earlier counts; five years supervised
release; $21,000 in restitution; $5,000 fine; and a $200 special
assessment. Quintero was sentenced to 235 months imprisonment on
Counts One, Twenty-Two, and Twenty-Three; 48 months imprisonment
on Counts Seventeen, Nineteen, and Twenty to run concurrently
with the earlier counts; five years supervised release; and a
$300 special assessment. According to Quintero's Presentence
Report, Quintero was found not guilty on Count Twenty-Eight and
discharged as to that forfeiture count. Our reading of the trial
transcript indicates that the jury found that Quintero must
forfeit $2,000 resulting from money received as alleged in overt
act 36 of Count One, but not guilty as to $3,000 resulting from
money received as alleged in overt act 37 of Count One. Mordago
was sentenced to 264 months imprisonment on Count One; 48 months
imprisonment on Count Eighteen to run concurrently with the
earlier count; five years supervised release; and a $100 special
assessment. Cruz was sentenced to 186 months imprisonment on
Counts One and Five to run concurrently; five years supervised
release; and a $100 special assessment.
as required by statute, and that the government failed to offer a

satisfactory explanation for the delay in sealing. For the

reasons which we will more fully develop below, we conclude that

certain of the surveillance tapes should have been suppressed.

The government concedes that those convictions arising directly

from the tapes cannot stand if the tapes are suppressed. We

agree and will reverse those convictions. As for the remaining

convictions, we will examine them under a harmless error standard

to determine whether they must also be reversed.2

I.

On February 7, 1992, a grand jury in the Eastern

District of Pennsylvania returned a twenty-eight count indictment

charging twelve individuals, including the six defendants here,

2
. In addition to the counts affected by the telephone
surveillance tapes, and the harmless error analysis we will apply
to those counts, defendants also challenge numerous individual
aspects of their convictions and sentences. Gonzalez-Rivera
asserts that his conviction for conspiracy to distribute cocaine
should be dismissed as a lesser included offense and challenges
the sufficiency of the evidence to support (1) his conviction of
engaging in a CCE and (2) the district court's conclusion that he
was involved in the distribution of in excess of 150 kilograms of
cocaine. Rodriguez challenges the sufficiency of the evidence to
support her conviction of conspiracy to distribute cocaine and
the district court's refusal to allow defendant's counsel to
cross-examine Quintero. Gonzalez asserts that the district court
erred in failing to grant a mistrial sua sponte and to sever his
trial from Mordago's trial. Gonzalez also challenges his
conviction for conspiracy to distribute cocaine as well as the
district court's imposition of restitution and a fine. Cruz
challenges the district court's refusal to suppress certain
physical evidence obtained during a search of a car driven by the
defendant. We have carefully reviewed these grounds for appeal
and find them to be without merit.
with a conspiracy to distribute cocaine in the Philadelphia

region. The indictment resulted from an extensive undercover

investigation conducted by the Federal Bureau of Investigation

("FBI") and other law enforcement personnel.

After receiving information from a cooperating witness

that drug dealers in the Philadelphia area needed vehicles with

concealed compartments, the FBI established an undercover

operation known as MRK Services, Inc. ("MRK"). MRK rented "load

cars"--cars which had secret compartments that could conceal

large quantities of drugs or currency. MRK also leased out

mobile cellular telephones. Hidden video and audio devices had

been installed in the MRK offices to record the transactions that

took place there. In addition, monitoring devices had been

placed in the load cars to facilitate surveillance. Two

undercover officers, Carlos Tapia ("agent Tapia") and Arsenio

Gonzalez ("agent Gonzalez") posed as employees of MRK and in that

capacity had dealings with several of the defendants.

As part of the investigation, the government conducted

ninety days of electronic surveillance of Paz's cellular

telephone, from August 1, 1991, through October 29, 1991. There

were three one-month authorizations and three judicial sealings.

The first authorization expired on August 30, 1991 ("August

tapes"). The August tapes were sealed eleven days later, on

September 10, 1991, by District Court Judge James J. Giles. The

first extension of the surveillance was authorized for thirty
days and expired on September 29, 1991 ("September tapes"). The

September tapes were sealed five days later, on October 5, 1991,

by District Court Judge James McGirr Kelly, who was serving as

Emergency Judge. The second, and final, extension of the

surveillance was authorized for thirty days and expired on

October 29, 1991 ("October tapes"). The October tapes were

sealed twenty days later, on November 18, 1991, by Judge Giles.

During this period, Paz used his cellular phone to

discuss his cocaine business with many of the individuals named

in the indictment. At trial, the government offered into

evidence sixty tape recordings and four video recordings

involving the defendants. A large majority of the taped

conversations were of telephone calls on Paz's cellular phone.

The remaining calls were recorded as incoming calls to MRK. Each

of the defendants, except Cruz, was recorded talking with Paz on

a number of occasions. Before turning to the question of whether

the government failed to seal the tapes in a manner consistent

with the law, an overview of the evidence presented at trial is

important to understanding the scope of the enterprise.

In November 1990, an informant serving a term of

imprisonment with Cristobal Paz informed the FBI that Paz, who

intended to re-enter the drug trade on release from prison,

needed a "ghost job" in order to satisfy the terms of his parole.

The FBI instructed the informant to give Paz the MRK telephone

number. After his release, Paz called MRK and spoke to agent
Tapia about a ghost job. Paz was informed that he could work as

a ghost employee with MRK if he agreed to supply MRK with funds

up front, which MRK would then use to pay Paz. Paz did not

comply with this condition and was not given a ghost job.

On his release from prison, Paz sought to reestablish

himself in the Philadelphia area as a major cocaine supplier. He

claims to have received large quantities of cocaine from

Gonzalez-Rivera in New York and from Oscar Fuentes in Florida.

Paz began to sell cocaine to agent Gonzalez. On May 7, 1991,

three individuals, working for Paz, delivered one kilogram of

cocaine to MRK in exchange for $21,000. After receiving the

cocaine, agent Gonzalez called Paz to confirm that it had

arrived. Paz testified that this cocaine was supplied by Fuentes

and delivered to Philadelphia by Santiago Gonzalez. According to

Paz, after he took $1,000 on the deal, he paid Gonzalez the

remaining $20,000 for the cocaine. On cross-examination, Paz

acknowledged that he had earlier told the FBI that this cocaine

was supplied by Gonzalez-Rivera.

Paz testified that, although he was suspicious that

agent Gonzalez was working undercover, this first sale helped to

convince him that MRK was not an undercover police operation.

Three weeks after the first cocaine sale, Paz leased two cellular

phones and one digital telephone pager from MRK. One of the

telephones was for his own use, while the other was for a
codefendant. It was Paz's cellular phone that was later

wiretapped.

In June 1991, Paz and Jose Rosario travelled to New

York to receive a shipment of cocaine from Gonzalez-Rivera. Paz

returned to Philadelphia before receiving the cocaine but

testified that Gonzalez-Rivera called to tell him that the

cocaine had arrived. Cruz and Rosario left New York with the

cocaine to deliver it to Paz in Philadelphia. They were stopped

by the police for speeding on the New Jersey turnpike. Because

of their suspicious behavior, they were detained and their car

was towed to the police barracks. A police dog reacted

positively to the presence of cocaine in the trunk of the car.

The New Jersey police obtained a warrant to search a suitcase in

the trunk and discovered fifteen kilograms of cocaine in it.

Paz testified that after the seizure of this cocaine

Gonzalez-Rivera contacted his boss in the drug network, Guillermo

(a/k/a "Memo"), in Medellin, Colombia. According to Paz,

Gonzalez-Rivera received his cocaine from Guillermo and Guillermo

worked for Pablo Escobar.

On June 27, 1991, the day after the fifteen kilogram

shipment of cocaine was seized, Paz rented a load car from MRK.

Agent Gonzalez testified that, when Paz returned the car on July

1, he stated that he had made two trips to New York, carrying

forty-six kilograms on each trip and that he had transported a

total of 145 kilograms of cocaine while he had the car. In
addition, Paz said that he had used the car to transport a large

amount of cash to Baltimore. After Paz left MRK, the agents

inspected the car and found white powder in the hidden

compartments. The powder later tested positive for cocaine.

Two days later, on July 3, Paz rented a load car and

drove it to New York. When Paz returned the car a little more

than a week later, the agents discovered two packages of coffee

in the secret compartment. An FBI agent testified that coffee is

often used by drug traffickers to mask the smell of drugs from

trained drug-sniffing dogs.

On July 15, Paz rented the same load car from MRK. He

drove to Gonzalez-Rivera's residence in the Bronx, New York. Paz

testified that he met Gonzalez-Rivera to take delivery of twenty-

six kilograms of cocaine. New York City detectives set up

surveillance at Gonzalez-Rivera's residence and at the residences

of co-defendants Diego Jesus Ortega ("Ortega") and Ortega's

nephew, Diego Mauricio Lopez-Ortega ("Lopez-Ortega"). Paz met

Gonzalez-Rivera in Manhattan and drove to Gonzalez-Rivera's

residence in the Bronx. On arriving at his residence, Gonzalez-

Rivera removed a gym bag from the car. One hour later, an

unidentified individual exited Gonzalez-Rivera's residence with

two gym bags and placed them in the car that Paz had rented from

MRK. Later that day, Ortega left Gonzalez-Rivera's residence

carrying a gym bag which he took to Lopez-Ortega's residence in

Queens. Police later obtained permission from Lopez-Ortega to
search his apartment; they found six kilograms of cocaine in a

gym bag. Paz testified that the cocaine he received from

Gonzalez-Rivera was brought to Philadelphia for distribution.

Paz further testified that the cocaine seized from Lopez-Ortega

had been rejected by Paz when Gonzalez-Rivera offered it to him.

Upon Paz's return of the load car to MRK, agents discovered

coffee grounds scattered throughout the secret compartment area.

On September 13, Paz and Santiago Gonzalez met with

agent Gonzalez at MRK to sell him one kilogram of cocaine. Agent

Gonzalez indicated that he would like to see the cocaine.

Santiago Gonzalez told Paz that "it's under your seat" in the car

that they had driven to MRK. Paz retrieved the cocaine from the

car and was paid $21,000 by agent Gonzalez. Paz took $1,000 to

pay for his use of the cellular phone and handed the remaining

$20,000 to Santiago Gonzalez. Agent Gonzalez testified that

Santiago Gonzalez held onto the money throughout the remainder of

the meeting. Paz testified that this kilogram was part of a

twenty kilogram delivery that Santiago Gonzalez had brought from

Florida.

On October 11, Paz gave five kilograms of cocaine on

consignment to agent Gonzalez at MRK ("the October 11 cocaine").

Agent Gonzalez met Paz at a Sunoco gas station near MRK prior to

the sale. According to agent Gonzalez, an unidentified female

was in the front seat of Paz's car and Santiago Gonzalez was in

the back seat. After meeting at the Sunoco Station, Paz and
agent Gonzalez proceeded to MRK in separate cars. Paz entered

MRK and delivered the five kilograms of cocaine. After the

transaction, agent Gonzalez and Paz walked back outside. Agent

Gonzalez noted that the unidentified woman and Santiago Gonzalez

had remained in Paz's car. Paz testified that the October 11

cocaine was part of a delivery that Santiago Gonzalez made from

Florida.

In a telephone call taped by MRK on October 16, Paz and

Santiago Gonzalez asked to be paid for the October 11 cocaine.

Agent Tapia testified that the FBI wanted to delay payment

because they were planning to arrest Paz in the near future. The

FBI arranged a meeting with Paz for the following day. Just

moments before Paz was to meet with agent Tapia, the FBI staged a

ruse in which the purported pay-off was seized from agent

Gonzalez by officers in a marked police car. The seizure was

staged so that Paz witnessed the event in an effort to convince

him that agent Tapia had planned to make the pay-off.

On October 31, Paz brought three additional kilograms

of cocaine to MRK. Agent Gonzalez was instructed by the FBI to

accept two of the three kilograms of cocaine from Paz but to

refuse the third. Shortly after leaving MRK, Paz was arrested

with the remaining kilogram of cocaine in his possession.

Paz testified that he received two and one-half

kilograms of this cocaine from Quintero and codefendant Elsa Cruz

during a trip to New York and that the remainder was left over
from cocaine supplied to him by Santiago Gonzalez. He said that

the cocaine he received from Quintero and Cruz was "wet" and he

needed to dry it before selling it to MRK. Paz testified that

Mordago helped him by drying the cocaine with acetone and that,

during the October 31 transaction, he called Mordago to complain

about the quality of the cocaine.

During the week following Paz's arrest, Santiago

Gonzalez and agent Tapia talked on the MRK telephone about paying

for the October 11 cocaine. On November 8, 1991, Santiago

Gonzalez was arrested in the parking lot of a Comfort Inn, where

he had arranged to meet agent Tapia to receive the $97,500 which

was owed for the October 11 cocaine. Less than an hour later,

Mordago was arrested in a room at the Comfort Inn, registered in

Santiago Gonzalez's name. On January 16, 1992, agents arrested

Gonzalez-Rivera and Rodriguez outside the residence in the Bronx

where they lived together. At the time of their arrest, agents

seized papers which contained the telephone and beeper numbers

for several of the defendants named in the indictment.

II.

The central question in this appeal is whether the

district court erred in denying defendants' motions to suppress

the wiretaps. The government concedes that the October tapes

"were not sealed as soon as administratively practical." In view

of this concession, we must decide whether the October tapes

should have been suppressed because the government failed to
supply a satisfactory explanation for the sealing delay. On this

question, our review is plenary. United States v. Carson, 969

F.2d 1480, 1487 (3d Cir. 1992) ("We exercise plenary review over

the legal issues relating to the sealing . . . of the tapes.").

III.

A.

Each of the five defendants, contesting the admission

of the wiretap tapes, presented individual briefs to the court.

Quintero asserts that all of the tapes must be suppressed.

Gonzalez-Rivera and Mordago challenge the August and October

tapes, while Rodriguez and Santiago Gonzalez limit their

challenge to the October tapes. For the reasons stated below, we

conclude that only the October tapes must be suppressed.

In obtaining authorization for tapping into Paz's

cellular phone, the government followed the procedures for

interception contained in Title III of the Omnibus Crime Control

and Safe Streets Act of 1968, as amended, 18 U.S.C. § 2510 et

seq. Defendants do not challenge the initial authorization or

the two extensions. The only challenge to the tapes is based on

the assertion that the government failed to comply with §

2518(8)(a) which provides, in part, that:
The recording of the contents of any wire,
oral, or electronic communication under this
subsection shall be done in such a way as
will protect the recording from editing or
other alterations. Immediately upon the
expiration of the period of the order, or
extensions thereof, such recordings shall be
made available to the judge issuing such
order and sealed under his directions. . . .
 The presence of the seal provided for by this
subsection, or a satisfactory explanation for
the absence thereof, shall be a prerequisite
for the use or disclosure of the contents of
any wire, oral, or electronic communication
or evidence derived therefrom under
subsection (3) of section 2517.3

(emphasis added).

In United States v. Ojeda Rios, 495 U.S. 257, 260

(1990), the Supreme Court noted that § 2518(8)(a) contains "an

explicit exclusionary remedy for noncompliance with the sealing

requirement." The Supreme Court determined that, pursuant to §

2518(8)(a), a seal had to be "obtained immediately upon
expiration of the underlying surveillance order." Id. at 263

(emphasis added). In the absence of a timely sealing, the Court

interpreted the statute to require that the government supply a

satisfactory explanation for its failure to comply with the

statute. Id. "[T]he 'satisfactory explanation' language in §

2518(8)(a) must be understood to require that the Government

explain not only why a delay occurred but also why it is

3
. 18 U.S.C. § 2517(3) provides:

Any person who has received, by any means
authorized by this chapter, any information
concerning a wire, oral, or electronic
communication, or evidence derived therefrom
intercepted in accordance with the provisions
of this chapter may disclose the contents of
that communication or such derivative
evidence while giving testimony under oath or
affirmation in any proceeding held under the
authority of the United States or of any
State or political subdivision thereof.
excusable." Id. at 265. The Court held that the explanation

offered by the government for the delay must be the explanation

relied upon by the government at the suppression hearing and not

an excuse presented by the government for the first time on

appellate review. Id. at 267.

In Ojeda Rios, a series of court orders authorized

electronic surveillance of the defendant in three different

locations for three different time periods. The government

waited until the end of the entire investigation to seal the

tapes. The underlying question was whether the government had

been obliged to seal the tapes from each location when that stage

of the surveillance had terminated or whether tapings at

different locations for different periods of time could be

considered to be extensions of the original order. The

government asserted that its reason for the delay in sealing the

tapes was the prosecutor's misunderstanding of the statutory term

"extension." Specifically, the government attorney believed that

he was not required to seal any tapes until all the taping had

been completed.

The Supreme Court held that the excuse advanced by the

government was "objectively reasonable" at the time the

government's decision was made, given earlier Second Circuit

decisions interpreting the meaning of "extension" and its

relationship to the sealing requirement. The Court held that, if

the government could show that the prosecutor's misunderstanding
of the law was the excuse given by the government at the

suppression hearing, such an "objectively reasonable"

understanding of the law would be a "satisfactory explanation"

for the government's delay in sealing the tapes. 495 U.S. at

266.

Since Ojeda Rios, we have had two cases which required

us to evaluate whether the government's delay in sealing tapes

could be excused based on a "satisfactory explanation" provided

by the government. See United States v. Vastola, 989 F.2d 1318

(3d Cir. 1993) (Vastola III);4 United States v. Carson, 969 F.2d

1480 (3d Cir. 1992). In Carson, we held that:
there are two kinds of justifiable government
delays under the statutory scheme. First,
there are the relatively short delays
necessitated by the process required to
comply with the provisions of the Act. . . .
Second, there are sometimes longer delays
attributable to non-administrative,
objectively reasonable causes like
understandable mistakes of law and
interference from unexpected, extrinsic
events beyond the government's control.

969 F.2d at 1488.5 We also stated in Carson that a "satisfactory

explanation is usually based on a mistaken view of the law on

4
. In the present dispute, the government does not rely on a
mistaken view of the law to explain why it delayed sealing the
tapes. Given that the focus of our decision in Vastola III was
on whether the prosecutor's mistaken view of the law was
objectively reasonable, we need not discuss that case in detail.
5
. It is important to emphasize that this first type of delay
concerns the short delays related directly to readying the tapes
for sealing. In Carson, we noted that "a local United States
Attorney can obtain a sealing order simply by presenting the
appropriate papers and tapes to the supervising judge. Other
what triggers sealing, but on occasion it can be supplied by an

extraneous unforeseen emergent situation." 969 F.2d at 1487

(citing Ojeda Rios, 495 U.S. at 266 and United States v. Massino,

784 F.2d 153, 157 (2d Cir. 1986)).

In Carson, we held that the government offered a

satisfactory explanation for the delay in sealing certain tapes

based on the prosecutor's mistaken view of the statute's sealing

requirements. 969 F.2d at 1493. However, with regard to a

second set of tapes, we rejected the explanation for the delay as

unsatisfactory. The thirty-four day delay in sealing these tapes

was caused by the government's sending them from New Jersey to

Washington, D.C., to enhance their audibility. Id. at 1497.

Finding that this delay was caused by neither a mistaken view of

the statute's requirements nor by an extraneous unforeseen

emergent situation, we held that the second set of tapes must be

suppressed.

B.

With this background, we now turn to the present

dispute. As a preliminary matter, we address the assertion put

forth by Quintero and Gonzalez-Rivera that the August tapes

should be suppressed because they were not sealed until the

eleventh day after the initial wiretap authorization expired on

August 30, 1991. In Carson, we held that the government's
(..continued)
than gathering the tapes, putting them in boxes and taking the
tapes to the supervising judge, the record discloses no other
necessary steps to sealing." 969 F.2d at 1489.
obligation to seal tapes under § 2518(8)(a) does not arise until

the termination of the final extension of the order. 969 F.2d at

1487 (language in § 2518(8)(a) which states that tapes must be

sealed "immediately upon the expiration of the period of the

order, or extensions thereof" represents "a Congressional

determination that tapes secured under one order need not be

sealed while surveillance is being conducted under a related

order that may be considered an 'extension.'"). We have

determined that a court's authorization to extend a wiretap

beyond the initial authorization is generally limited to taps

involving the same location, United States v. Vastola, 915 F.2d

865, 874 (3d Cir. 1990) (Vastola II), cert. denied, 498 U.S. 1120

(1991).6

The extensions authorized here were clearly a

continuation of the initial authorization to tap Paz's cellular

phone. None of the defendants have asserted that the first or

second extension constituted anything other than a continuation

of the initial authorization. Consequently, the August tapes did

not have to be sealed until the termination of the entire wiretap

operation on October 29, 1991. Given the fact that the August

tapes were sealed on September 10, 1991, long before the wiretap

terminated on October 29, 1991, the district court properly

admitted the August tapes. This same result applies to the

6
. Under the facts of the present case, we now perforce expand
that interpretation of "extension" to include taps involving a
designated cellular telephone.
September tapes, which were sealed on October 4, 1991, again long

before October 29, 1991. Our focus, therefore, is on the October

tapes.

The government concedes that it failed to seal the

October tapes immediately: "Regarding the October tapes, the

government concedes that these tapes were not sealed as soon as

administratively practical under Carson and Vastola III. This

Court must then determine if the October tapes are nonetheless

admissible because the delay was 'objectively reasonable.'"

In order to assess whether the government has supplied

a satisfactory explanation for the delay in sealing the October

tapes, we are required under Ojeda Rios to examine the reasons

supplied by the government to the district court. In addition,

we held in Vastola III that the government "must prove the actual

reason for the sealing delay rather than an excuse for some

ulterior purpose or administrative bungle." 989 F.2d at 1323.

See also Ojeda Rios, 495 U.S. at 267 ("a 'satisfactory

explanation' within the meaning of [the statute] cannot merely be

a reasonable excuse for the delay; it must also reflect the

actual reason for the delay.") (O'Connor, J., concurring, joined

by Blackmun, J.).

On the first day of the trial, defendants moved to

suppress the tapes based on the government's failure to comply

with the statute's sealing requirement. At the hearing on the

motion, FBI agent Michael McGowan, who headed the investigation,
testified that he believed "part of the delay" in sealing was

because at the end of the October authorization period both of

the Assistant United States Attorneys ("AUSA"s) working on the

case "were involved in separate trials." Hearing at 57. When

asked on cross-examination what was the other reason for the

delay, McGowan testified that "I don't know what the Judge's

appointment was when he told the U.S. Attorney to appear. We

don't contact the Judge. We go through the U.S. Attorney's

office." Id. Later in the hearing, AUSA Carlos Suddath, who was

one of the two prosecutors working on the case, asserted that

McGowan's testimony supported the contention that the government

had provided a satisfactory explanation for the delay. He noted

that both he and the other AUSA working on the case, Thomas

Martir, were occupied with other trials. Suddath agreed with the

district court that his trial was on the same floor as Judge

Giles's chambers but explained the delay in sealing by stating

that "we also must fit in with the Judge's schedule." Id. at 70.

Because the issue of suppressing the tapes was raised

for the first time that day, the district court allowed the

prosecution time to file a supplemental brief, opposing the

defendants' motion to suppress. The reasons, given by the

government in its brief, mirrored those given at the initial

hearing on the motion. The government noted that from October 15

to November 15, 1991, AUSA Suddath was on trial before Judge

Kelly in a major criminal trial. During the "first two weeks" of
November 1991 AUSA Martir was involved in "substantial pretrial

preparation in a complex defense procurement fraud case" which

was scheduled to begin on December 3, 1991. The government

stated that this involved a substantial amount of time outside

the office as Martir interviewed approximately twenty potential

witnesses. In addition, Martir was responsible for two

sentencing hearings during the first week in November, a

detention hearing during the second week in November, and the

preparation of the complaints and arrest warrants for Santiago

Gonzalez and Mordago. The government also noted that Judge Giles

was unavailable between September 30 and November 4, 1991,

because he was sitting by designation in the Virgin Islands.

Although finding the delay in sealing the October tapes "somewhat

more troublesome" than the delays associated with the August and

September tapes, the district court held the October tapes

admissible. Dist. Ct. Order at 4. After subtracting the four

days in which Judge Giles was unavailable, four weekend days, and

the Veteran's Day holiday, the district court concluded that the

delay in sealing the October tapes amounted to twelve working

days.7 The district court held that "since the delay here falls
7
. In fact, the time period between October 29 and November 18,
1991, included three weekends which, using the district court's
methods, would amount to a delay of ten working days. We are
aware that we discounted weekend days in Carson in the situation
of a taping order expiring on a Wednesday and tapes being sealed
the next Monday and of an order expiring on a Thursday and the
tapes being sealed the next Wednesday. We held there that the
tapes were sealed immediately. 989 F.2d at 1498. However,
eliminating the days of one intervening weekend is very different
from eliminating the days of multiple intervening weekends. We
within the ambit of the rough rule of thumb suggested in Carson,

the tapes are admissible." Id. at 7.

We interpret the district court's order to hold that

the October tapes had been sealed "immediately" under the

statute. Thus, the district court did not address the question

of whether there was a satisfactory explanation for the

government's delay in sealing the tapes.8 However, because the

government concedes that the October tapes were not sealed

immediately, a conclusion with which we agree, the question now

turns to whether the government has offered a satisfactory

excuse. Because this is a question of law subject to plenary

review, and the record before us is complete, we are in a

position to decide it.

C.

The primary reason offered by the government for the

delay in sealing the October tapes is the workload of the AUSAs

responsible for prosecuting the case. In support of its

assertion that a prosector's workload can serve as a satisfactory

(..continued)
do not address here the propriety of subtracting the days of
multiple intervening weekends in determining the length of the
delay.
8
. In making its finding, the district court did hold that it
was permissible to include the days Judge Giles was unavailable.
The district court made no substantive findings, however, with
regard to the work schedules of the two AUSAs prosecuting the
case. The court made passing reference to the fact that the
October tapes were sealed "the first working day after AUSA
Suddath completed a month-long trial." Dist. Ct. Order at 4. No
mention was made of AUSA Martir.
excuse, the government points to language in Carson, 969 F.2d at

1498, and decisions from several other courts of appeal. See

United States v. Pedroni, 958 F.2d 262 (9th Cir. 1992) (fourteen

day delay permitted); United States v. Rodriguez, 786 F.2d 472

(2d Cir. 1986) (same); United States v. Scafidi, 564 F.2d 633 (2d

Cir. 1977) (7 day delay permitted), cert. denied, 436 U.S. 903

(1978).9

A review of these cases reveals that there are

substantial differences between them and the present dispute.

Moreover, the only language we find in Carson which suggests

support for the proposition asserted by the government that

"[t]his Court . . . has recognized that personnel shortages,

including the trial schedule and work responsibilities of a

prosecutor, may be a 'satisfactory explanation'" is the

statement:
We recognize that there may be
limited special circumstances apart from the
administrative practicalities of obtaining a
sealing order that would justify some delay.

9
. The government's brief also directs us to our opinion in
Vastola III, 989 F.2d at 1327-28 n.1 (view of Nygaard, J.) in
support of the government's assertion that "personnel shortages,
including the trial schedule and work responsibilities of a
prosecutor, may be a 'satisfactory explanation' for a sealing
delay." The dispute in Vastola III involved the question, inter
alia, of whether the government's mistaken view of the law was an
objectively reasonable one at the time. The dispute did not
involve a question of whether administrative difficulties or
attorney caseload might be a satisfactory explanation for a delay
in sealing tapes. We regard the language in footnote 1
concerning an attorney's caseload as dictum, given that such
language was not relevant to our decision in Vastola III.
969 F.2d at 1498. However, in Carson we then went on to discuss

United States v. Massino and the adequacy of an excuse if the

need for it was brought about by "unusual and unforeseeable"

circumstances -- not by normal, albeit heavy, work schedules.

In Massino, the defendants moved to suppress

surveillance tapes which the government sealed after a delay of

fifteen days. The government claimed that the delay was caused

by the need to divert resources for "an immediate, sensitive and

comprehensive investigation into a 'leak' of information"

concerning the electronic surveillance of the defendants. 784

F.2d at 154 n.2. The government, fearful that the leak would

jeopardize its ongoing investigation and expose confidential

informants to danger, devoted all its resources to finding the

leak.

While the court of appeals in Massino expressed concern

about the length of delay, it ultimately held that the tapes

should not be suppressed. Id. at 158. The court based its

decision, in part, on the "lack of foreseeability that a large

investigation would be needed" and that the leak represented an

"urgent matter." Id. Massino then does represent a "limited

special circumstance" in which a delay attributable to events

unrelated to the sealing of the tapes is found to be a

satisfactory explanation.

In Carson, we noted that "on occasion [a satisfactory

explanation] can be supplied by an extraneous unforeseen emergent
situation." 969 F.2d at 1487 (citing Massino, 784 F.2d at 157).

However, we held that the facts presented in Carson did not

constitute a satisfactory explanation. The need to enhance the

audibility of the tapes was "readily foreseeable and could just

as readily become routine." 969 F.2d at 1498. We distinguished

Massino, where there was "an unexpected, urgent need for

investigation of a damaging leak. Such a situation is unusual

and unforeseeable." Id.

We find the excuse offered by the government in the

present case closer to the excuse in Carson than to that in

Massino. AUSA Suddath's trial was foreseeable. In fact, he had

been working on the same trial for two weeks prior to the

termination of the surveillance operation. Similarly, there was

nothing in AUSA Martir's caseload that was unusual. The

government asserts that Martir's caseload increased unexpectedly

when Santiago Gonzalez and Mordago were arrested on November 8,

1991. This increase is more consistent with the expected flow of

cases into the United States Attorney's office than it is with

the type of emergency described in Massino. In addition, the

government acknowledged during oral argument that it could have

assigned any one of the many AUSAs in the Eastern District to

process the sealing of the tapes before Judge Giles. The

government also conceded that the sealing was a "relatively

simple procedure under the facts here." In response to a
question concerning the mechanics of a sealing, the government

responded:

They are very limited, your Honor. My
estimate to the court is that in terms of the
total time for example for that to be
accomplished in front of the district court
judge, we're not talking about more than
fifteen minutes. It is simply a matter of
our assembling the tapes, putting them into
boxes, taking them over to the courthouse,
presenting them to the judge with a sealing
order. The tapes are physically sealed in
front of the judge. He initials the corners
of the parcel, the box in which they are
sealed to make sure that it can't be opened
without its being noticed. We then take them
down to the clerk's office where they are
given to a designated clerk and I believe
kept in the district court clerk's safe.

The other cases cited by the government in support of

its position are also distinguishable. The government cites

Rodriguez for the proposition that a fourteen day delay was

permitted when the supervising attorney was preoccupied with

another trial. A closer reading of Rodriguez reveals that this

excuse was but one of many factors relied upon by the court in

vacating the district court's suppression order. The court of

appeals credited the government's explanation that the "bulk of

the delay was caused in part" by the prosecutor's mistaken belief

that a comprehensive report had to be filed at the time the tapes

were sealed. 786 F.2d at 478. While the prosecutor's workload

in Rodriguez was a factor in finding time to prepare the report

she mistakenly believed was needed, the primary rationale for the
delay was the belief that a comprehensive report was needed in

the first place, an excuse which the government does not claim is

applicable here.

The government cites Scafidi for the proposition that a

seven day delay was permissible when the prosecutor was

preoccupied with an upcoming trial. While this was the only

reason provided for the delay, the court held that the government

"presented a satisfactory explanation for this short delay."

Scafidi, 564 F.2d at 641 (emphasis added). As we noted in

Carson: "The length of a sealing delay is a relevant factor in

considering whether an explanation is satisfactory," 969 F.2d at

1498 (citing United States v. McGrath, 622 F.2d 36, 42 (2d Cir.

1980)). We are not faced with a seven day delay in the present

case. We do not, therefore, need to determine if such a delay

would be acceptable in this circuit.

Perhaps the closest case to the present is Pedroni, in

which the government offered two reasons for the fourteen day

delay in sealing the tapes: the heavy workload of the FBI agent

responsible for preparing the tapes for sealing and the

unavailability of the judge. Notwithstanding the fact that the

reasons provided by the government in Pedroni are comparable to
the explanations here, our decision in Carson steers us away from

delays caused by a prosecutor's ordinary responsibilities,

despite how onerous those ordinary responsibilities may be. To
the extent that Pedroni supports the government's position, we

decline to follow it.

In summary, we conclude that a prosecutor's routine

duties, hectic as that routine may be, are not a satisfactory

explanation for failing to comply with the immediacy requirement

of § 2518(8)(a). Were we to agree with the government, we would

be rendering extraordinary that which is ordinary. We decline to

do so.

D.

The second rationale offered by the government is that

Judge Giles's unavailability should be considered a satisfactory

explanation for a part of the delay. The courts of appeal which

have considered the question of whether a judge's absence can

serve as a satisfactory excuse have reached opposite conclusions.

Compare United States v. Pedroni, 958 F.2d 262, 266 (9th Cir.

1992) ("unavailability of the issuing or supervising judge may

constitute a satisfactory explanation for a sealing delay"); with

United States v. Rodriguez, 786 F.2d 472, 476 (2d Cir. 1986)

(government's reliance on the absence of issuing judge to explain

part of the delay is unacceptable given prior Second Circuit

decisions which made clear that other judges could properly seal

tapes). In reaching its decision in Pedroni, the Ninth Circuit
expressly relied upon prior Second Circuit decisions which held

that a judge's unavailability could serve as a satisfactory

explanation for a delay in sealing. See United States v. Fury,
554 F.2d 522, 533 (2d Cir. 1977) (six day delay reasonably

explained by unavailability of issuing judge who was on

vacation), cert. denied, 436 U.S. 931 (1978); United States v.

Poeta, 455 F.2d 117, 122 (2d Cir.) (thirteen day delay approved

where agents assumed issuing judge must seal tapes), cert.

denied, 406 U.S. 948 (1972). However, subsequent to Fury and

Poeta, the Second Circuit noted in United States v. Vazquez, 605

F.2d 1269, 1280 n.25 (2d Cir.), cert. denied, 444 U.S. 981

(1979), that "tapes sealed by a judge other than the 'issuing

judge,' because of the absence or unavailability of the latter,

are considered properly sealed." This language in Vazquez was

the express basis for the Second Circuit's later decision in

Rodriguez that it would no longer consider a judge's

unavailability as a satisfactory excuse for a sealing delay.

Judge Giles, who had approved the initial authorization

and both extensions to conduct electronic surveillance of Paz's

cellular phone, was unavailable before November 4, 1991, because

he was sitting in the Virgin Islands. We find, however, that

the fourteen day delay after Judge Giles's return is excessive

under the standards of Ojeda Rios. For this reason, we do not

need to, and we will not, decide whether the absence of the

supervising judge, in and of itself, is sufficient excuse for any

delay in sealing. Nevertheless, we do note in this regard, that

any judge in the district can order the tapes sealed, as did

Judge Kelly on October 10, 1991.
 E.

The final argument for admissibility of the tapes

arises from the fact that the FBI exercised elaborate and

painstaking procedures to insure their integrity. As the

district court found, the tapes remained "sealed (although not

officially under judicial holograph), locked away in secure

evidence storage, unbudged and untouched" prior to the judicial

sealing and the "actual integrity of the tapes has not been

challenged." Dist. Ct. Order at 6. But as the Supreme Court

held in Ojeda Rios, "[t]o hold that proof of nontampering is a

substitute for a satisfactory explanation is foreclosed by the

plain words of the sealing provision." 495 U.S. at 264-65.

Because we find that the government has failed to offer a

satisfactory explanation for the delay in sealing the October

tapes, § 2518(8)(a)'s "explicit exclusionary remedy" must be

employed. Id. at 260.

IV.

Given our decision that the October tapes should have

been suppressed, we now turn to the question of whether the

admission of the October wiretap evidence was harmless error. At

oral argument, we invited the parties to submit briefs addressing

the issue of harmless error. We have carefully reviewed these

submissions.

As a preliminary matter, the convictions for use of a

communication facility, which are based on communications
intercepted and recorded on the October tapes, will be reversed.

Quintero was convicted of three such counts: Count Seventeen,

based on an October 11, 1991, telephone call; Count Nineteen,

based on an October 23, 1991, telephone call; and Count Twenty,

based on an October 26, 1991, telephone call. Santiago Gonzalez

was convicted on Count Twenty-One, based on an October 28, 1991,

telephone call. Mordago was convicted on Count Eighteen, based

on an October 12, 1991, telephone call. Without the October

tapes, the government concedes that there is no evidence to

sustain the defendants' convictions on these counts.10

We now turn to those convictions which require a more

extensive review of whether the admission of the October tapes

constituted harmless error. In making this assessment, we first

must determine whether the error alleged is constitutional or

nonconstitutional. See United States v. Grayson, 795 F.2d 278,

290 (3d Cir. 1986) (finding that challenged jury instruction did

not affect any possible constitutional right, court applied

10
. In its supplemental brief the government states that Maria
Rodriguez's conviction on the telephone count should be reversed
if the October tapes are suppressed. Rodriguez was indicted on
two counts of use of a telephone to facilitate the conspiracy in
Count One. Count Thirteen was based on a telephone call on
September 5, 1991, and Count Fifteen was based on a telephone
call on October 10, 1991. At trial, Rodriguez was convicted on
Count Thirteen, but acquitted on Count Fifteen. This result is
confirmed in both the docket sheet and sentencing report signed
by the district court. Given the fact that Rodriguez was not
convicted on the telephone related count based on her October 10,
1991, conversation with Paz, there is no need to reverse. Her
convictions will be discussed infra.
"highly probable" standard of appellate review to assess the

question of harmless error), cert. denied, 481 U.S. 1018 (1987).

We find that the dispute here involves a claim of

nonconstitutional error in that it is based solely on a violation

of § 2518(8)(a). Therefore, in deciding whether the admission of

the October tapes constituted harmless error, we must evaluate

whether it is "highly probable that the evidence did not

contribute to the jury's judgment of conviction." Government of

Virgin Islands v. Toto, 529 F.2d 278, 284 (3d Cir. 1976). "'High

probability' requires that the court have a 'sure conviction that

the error did not prejudice the defendant,' but need not disprove

every 'reasonable possibility' of prejudice." Grayson, 795 F.2d

at 290 (quoting United States v. Jannotti, 729 F.2d 213, 219-220

n.2 (3d Cir.) cert. denied 469 U.S. 880 (1984)). We will review

each defendant's convictions applying this standard.

A. Jose Gonzalez-Rivera

The jury found Jose Gonzalez-Rivera guilty of one count

of conspiracy to distribute in excess of five kilograms of

cocaine (Count One), one count of engaging in a CCE (Count Two),

two counts of possession with intent to distribute cocaine

(Counts Five and Six), and one count of use of a communication

facility to facilitate the conspiracy in Count One (Count Eight).

None of Gonzalez-Rivera's convictions were based directly on

conversations recorded on the October tapes.
 Gonzalez-Rivera's conviction on the telephone count

(Count Eight) was based on a conversation between Paz and

Gonzalez-Rivera on August 9, 1991. We have held that the August

tapes were admissible. Admission of the October tapes was

clearly harmless as to the conviction on this count.

The evidence on the remaining counts against Gonzalez-

Rivera was substantial. Count Five was based on the fifteen

kilograms of cocaine seized by the New Jersey police when Cruz

and Rosario were stopped on the New Jersey Turnpike on June 26,

1991. Paz testified that he and Rosario had travelled to New

York in late June 1991 in order to receive this cocaine from

Gonzalez-Rivera. Paz testified that, although he returned to

Philadelphia before the cocaine had been delivered, Gonzalez-

Rivera called him to report that it had arrived.

Count Six was based on the seizure of six kilograms of

cocaine from the residence of Lopez-Ortega on July 15, 1991.

Regarding this cocaine, Paz testified that he had travelled to

New York in a load car rented from MRK in order to pick up a

large quality of cocaine from Gonzalez-Rivera. Paz further

testified that he accepted twenty kilograms of cocaine from

Gonzalez-Rivera but that he did not like the quality of the

remaining six kilograms, nor would they fit into the concealed

compartment of his car. According to Paz, Gonzalez-Rivera called

Ortega and asked that he remove the remaining six kilograms of

cocaine from Gonzalez-Rivera's residence because Gonzalez-Rivera
was concerned that law enforcement officials were conducting

surveillance of him and Paz. Surveillance did in fact establish

that Ortega then transported a gym bag from Gonzalez-Rivera's

residence in the Bronx to Lopez-Ortega's residence in Queens, New

York. A gym bag containing six kilograms of cocaine was seized

from Lopez-Ortega's residence that evening. Because of the

strong evidence in support of Counts Five and Six, we find that

the introduction of the October tapes was clearly harmless as to

Gonzalez-Rivera's convictions on these counts.

Gonzalez-Rivera asserts, however, that the admission of

the October tapes constituted prejudicial error in regard to the

conspiracy and CCE convictions (Counts One and Two) because two

telephone conversations, recorded in October, were used to

establish his connection to Guillermo (a/k/a Memo), a drug

supplier in Medellin, Colombia. Gonzalez-Rivera asserts that

these conversations supported the government's contention that he

was a "leader of a Medellin cocaine cartel 'cell' in New York

City" as alleged in Count One.

Gonzalez-Rivera was not recorded on either of these

October tapes. Both of these calls involved Paz and Rodriguez

and took place on October 11, 1991. During the first

conversation, Rodriguez relayed a message from Gonzalez-Rivera to

Paz for Paz to call Guillermo in Medellin, Colombia, regarding a

$6,000 payment that Guillermo was demanding. Rodriguez supplied

Paz with Guillermo's phone number in Medellin. Immediately after
his conversation with Rodriguez, Paz attempted to call Guillermo.

When Paz supplied Guillermo's number to the operator, the

operator told Paz that the call could not be billed to Paz's

cellular telephone. At this point, the call was interrupted on

"call waiting" by Rodriguez. During this second conversation,

Rodriguez informed Paz that Gonzalez-Rivera wanted Paz to call

him immediately instead of talking to Guillermo. Paz's trial

testimony confirmed the content of these conversations.

Gonzalez-Rivera's defense depended in part on his own

testimony that he was not a member of the Medellin cartel. On

direct examination, Gonzalez-Rivera testified that Memo was a

loan shark in New York from whom Gonzalez-Rivera had borrowed

$6,000.11 In an effort to impeach Gonzalez-Rivera's testimony
11
. Gonzalez-Rivera testified on direct examination as follows:

Q: There was great deal of testimony about a
guy named Memo, do you remember that?

A: Yes, I remember the man.

Q: Tell the jury who Memo is?

A: Memo is a big shot in New York that lent
me money. He lent me six thousand dollars.

Q: Is Memo a loan shark?

A: Yes.

Q: Now, when did you talk to Memo about
getting six thousand dollars?

A: After Mr. Paz, he owed me the money.

Q: After Mr. Paz promised you the six
thousand dollars?
concerning Memo, the government on cross-examination questioned

Gonzalez-Rivera with regard to the two telephone conversations.12
(..continued)

A: Yes.

Trial Transcript ("TT") at 51 (Sept. 16, 1992).
12
. The government cross-examined Gonzalez-Rivera as follows:

Q: And Memo is this loan shark who lives in the Bronx?

A: Yes.

Q: You have been feeding Paz's ego by saying
that he lives in Colombia?

A: No.

Q: You never said that?

A: No.

Q: You never told Maria Rodriguez to tell Paz
to call Memo in Colombia?

A: Yeah, I told Maria. I told Maria, but I
gave a fax number. He never went through
with it because he never talked to me, Memo.

Q: You heard the phone call where he tried to
call Colombia?

A: Yeah. You hear, he never talked to Memo.

Q: Did you hear the operator say that the
billing was denied?

A: Yes.

Q: So he could not charge the call?

A: Yes, but he never got through with it. I
know that that's not a telephone number for
Memo.
In addition, the government made reference to the conversations

during its closing argument as evidence of Gonzalez-Rivera's

connection to Medellin.

Gonzalez-Rivera asserts prejudice in that the telephone

conversations provided confirmation of Paz's testimony on direct

examination that Gonzalez-Rivera received large quantities of

cocaine from suppliers in Medellin. He contends that the

combined effect of the use of these recordings constituted

prejudicial error leading to his conviction on the conspiracy and

CCE counts.

In conducting the harmless error analysis, we must keep

in mind that the government produced admissible testimony by Paz,

a participant in the calls, about the calls. However, would the

jury have credited Paz's uncorroborated version of the calls

without any other support? We must consider whether the jury's

exposure to the content of the calls induced the jurors to give

undue credit to Paz's testimony, rather than to Gonzalez-

Rivera's.

(..continued)
Q: Why would you give a telephone number of a
loan shark that you met in the Bronx? Why
did you give a number to Medellin in Colombia
to Paz?

A: That's what they wanted to hear, Paz.

Q: This was part of you feeding his ego?

A: Yes.

TT at 114-15 (Sept. 16, 1992).
 There is precedent, however, to support the admission

of the content of the tapes for impeachment purposes even if the

tapes were inadmissible on the merits of the government's case.

In view of Gonzalez-Rivera's testimony on direct examination

about his relationship with Memo, the tapes of the calls could

have been used to attack Gonzalez-Rivera's credibility. Even

though the two conversations should not have been admitted during

the government's case-in-chief, unlawfully obtained evidence may

be used to impeach the direct testimony a defendant gives at

trial. See Walder v. United States, 347 U.S. 62, 65 (1954). In

Walder, the Supreme Court held that it was permissible for the

government to use testimony regarding drugs obtained in an

illegal search to impeach the testimony of the defendant that he

had never possessed any narcotics.

On direct examination here, Gonzalez-Rivera testified

that Memo was a loan shark in New York to whom Gonzalez-Rivera

owed $6,000. As a result, the issue of Gonzalez-Rivera's

relationship to Memo was clearly brought into question by

Gonzalez-Rivera's direct testimony. Once he put his relationship

to Memo in issue by offering the loan shark explanation, the

government was entitled to rebut this explanation by showing that

Gonzalez-Rivera's testimony was untrue. Although the content of

these two tapes was admissible only to impeach Gonzalez-Rivera's

testimony about Memo, and not admissible as direct evidence of

Gonzalez-Rivera's involvement with Memo, it was precisely this
aspect of the testimony that Gonzalez-Rivera complains of, i.e.,

that the jury believed Paz, rather than Gonzalez-Rivera, on the

question of Gonzalez's relationship with Memo and the Medellin

cartel. Because this element of the evidence, the impeachment

factor, was permissible under the circumstances, we find the

spill over into the merits of the government's case to be

harmless.13

Moreover, our review of the record indicates that the

other evidence, tying Gonzalez-Rivera to the Medellin cartel, was

13
. The use of the October calls to impeach Gonzalez-Rivera is
further supported by his testimony during the initial phase of
the government's cross-examination. See United States v. Havens,
446 U.S. 620 (1980). On cross-examination, Gonzalez-Rivera
testified that many of his telephone conversations with Paz
recorded by the government during August and September 1991
concerned $6,000 that Paz owed him from an earlier debt, money
which Gonzalez-Rivera testified he planned to use to pay off
Memo. In Havens, the Supreme Court considered whether "evidence
suppressed as the fruit of an unlawful search and seizure may
nevertheless be used to impeach a defendant's false trial
testimony, given in response to proper cross-examination, where
the evidence does not squarely contradict the defendant's
testimony on direct examination." 446 U.S. at 621. While Walder
is more on point to the present case because Gonzalez-Rivera did
testify as to Memo's identity on direct examination, Havens is
also instructive. The Supreme Court held that "a defendant's
statements made in response to proper cross-examination
reasonably suggested by the defendant's direct examination are
subject to otherwise proper impeachment by the government, albeit
by evidence that has been illegally obtained and that is
inadmissible on the government's direct case, or otherwise, as
substantive evidence of guilt." Id. at 627-28. Not only could
the government use the fact of the two calls to impeach the
defendant's direct testimony that Memo was a loan shark in New
York, such evidence could have been used to impeach the
defendant's credibility based on his testimony during cross-
examination.
substantial. Paz testified that Gonzalez-Rivera served as one of

his major cocaine suppliers. In describing his trip to Gonzalez-

Rivera's residence in April, 1991, to pick up fifteen kilograms

of cocaine from Gonzalez-Rivera and Cruz, Paz testified that

Gonzalez-Rivera received his cocaine from Medellin.

Q: Now, you've testified that with respect to
Jose Gonzalez-Rivera, that the cocaine that
he received came from Medellin, Colombia?

A: Yes, sir.

Q: How did you know that?

A: Because the telephone calls that he was
making to Colombia, he made a lot of calls in
front of me.

Q: And what were those calls? What was discussed
during those calls that you were present during that
period?

A: Well, when we lost 15 kilos on the turnpike, that
was one of the things that he had to call down there,
to Medellin to talk to his bosses about, and the other
one was some money -- they stole some merchandise from
me in Philadelphia.

Q: When you refer to merchandise, what are
you referring to?

A: Cocaine.

Q: Now, did you know the names of the
individuals that Jose Gonzalez would speak to
in Colombia?

A: Yes. Guillermo.

Q: Did you ever get to know an individual by
the name of Memo?

A: No, I didn't meet him. I did not speak to
him, but Jose did speak to me about him.
 Q: Who was Memo to Jose Gonzalez-Rivera?

A: His boss.

Q: His boss for what?

A: For cocaine.

. . .

Q: So Guillermo and Memo are one in [sic] the same?

A: Yes, sir.

TT at 27-29 (Sept. 2, 1992; Afternoon Session).

The government presented other evidence of Gonzalez-

Rivera's connection to Memo: During a conversation recorded on

August 1, 1991, Paz and Gonzalez-Rivera discussed Cruz's arrest

and the seizure of the fifteen kilograms of cocaine; Paz

testified that they discussed the need to send Cruz's arrest

papers to Memo in Medellin, in an effort to justify the loss of

the fifteen kilograms; during a conversation recorded on August

17, 1991, Paz and Gonzalez-Rivera discussed a cocaine

transaction; when Paz informed Gonzalez-Rivera that he could get

a very high price for cocaine, Gonzalez-Rivera responded that he

was "gonna call that man down south"; Paz testified that he

understood the defendant to be referring to Memo in Medellin.14

Paz testified that he understood these references to be to Memo.

14
. This was one of several instances in which Gonzalez-Rivera
makes reference to a "man down south" in connection with a
payment or debt for cocaine or in connection with a drug
transaction.
 In another telephone conversation, recorded on

September 21, 1991, Gonzalez-Rivera told Paz that Gonzalez-Rivera

had given up a piece of property in Colombia as security for a

debt of $34,000 that Paz owed to Gonzalez-Rivera and that

Gonzalez-Rivera in turn owed to "that man." Paz testified that

Gonzalez-Rivera owned a condominium and large farm in Medellin.

In total, Paz testified in regard to fifteen telephone

conversations, between himself and Gonzalez-Rivera, which were

recorded by the government wiretap between August 1 and October

29, 1991. Thirteen of these recordings were properly admitted.

The jury had the opportunity to listen to each of these

conversations and at the same time to review a transcript of

them. Paz pointed out specific portions of each telephone call

in which he and Gonzalez-Rivera discussed their drug business.

The government also presented the testimony of FBI

agent Harold Clouse as an expert witness in the field of drug

jargon analysis. Clouse reviewed the entire set of tape

recordings and testified as to eight telephone conversations

between Paz and Gonzalez-Rivera. Of these eight calls, only one

was recorded during October. The other seven were properly

admitted.

Clouse testified that a majority of these calls were

drug related. For instance, he testified that a telephone

conversation between Paz and Gonzalez-Rivera, recorded on August

14, was a drug related call in which Gonzalez-Rivera quoted Paz a
price for a kilogram of cocaine and they discuss how much Paz

could charge his buyers for it. Clouse testified that there were

other references in this conversation to cocaine which Gonzalez-

Rivera planned to supply to Paz. In addition, Clouse testified

that three days later, on August 17, Paz and Gonzalez-Rivera

engaged in a drug related conversation in which they discussed

the price of a kilogram of cocaine. In connection with this

telephone call, Paz described how the cocaine he received from

Gonzalez-Rivera was supplied to Gonzalez-Rivera: A call would be

made to an individual in Colombia, that person would call New

York to authorize delivery of cocaine, and the cocaine would be

delivered the next day. Asked how he knew about this

arrangement, Paz responded that Gonzalez-Rivera had explained it

to him. Paz testified that, after these arrangements were made,

he would pick up his cocaine at Gonzalez-Rivera's residence in

the Bronx.

In addition, FBI agent McGowan testified that at the

time of Gonzalez-Rivera's arrest, Gonzalez-Rivera had Memo's

telephone number handwritten on several pieces of paper in his

wallet. This number corresponded to a telephone number that, at

the time of Paz's arrest, Paz had in his address book under the

name of Guillermo.

Despite this evidence, Gonzalez-Rivera asserts that the

admission of the two October calls constituted prejudicial error.

It is true that the government made reference to the two October
calls during its closing argument as evidence of Gonzalez-

Rivera's connection to Medellin. We find, however, that the

references to these two phone conversations were merely

cumulative of other substantial evidence connecting Gonzalez-

Rivera to this conspiracy.

We conclude that, in light of all this evidence,

Gonzalez-Rivera was not prejudiced by the erroneous admission of

the October tapes. For that reason, their admission was harmless

as to his conviction on Counts One and Two. See United States v.

Jannotti, 729 F.2d at 219-20 (to find error harmless, we must

have a sure conviction that the error did not prejudice the

defendant; yet we need not disprove every possibility of

prejudice). We will uphold Gonzalez-Rivera's convictions on all

of the counts for which he was convicted.

B. Maria Rodriguez

Maria Rodriguez was convicted of one count of

conspiracy to distribute in excess of five kilograms of cocaine

(Count One) and one count of use of a communication facility to

facilitate the conspiracy in Count One (Count Thirteen). The

conviction on Count Thirteen was based on a September 5, 1991,

phone call. Since we have held that the September tapes were

admissible, the admission of the October tapes was clearly

harmless error as to Count Thirteen.

Turning to the conspiracy conviction, Rodriguez in her

supplemental brief adopted the arguments advanced by Gonzalez-
Rivera as to the prejudicial effect of the admission of the

October tapes. The government asserts that the admission of the

October tapes constituted harmless error based on the substantial

evidence, excluding the October calls, against Rodriguez.

The government's evidence against Rodriguez consisted

of testimony by Paz and FBI agent Clouse about items seized from

the defendant at the time of her arrest15 and about five

telephone conversations between the defendant and Paz. Two of

the five conversations were recorded in September 1991, with the

remaining three recorded in October 1991. Paz testified as to

all five calls and his participation in them. Clouse testified

as to four of the five calls, identifying each as drug related.

The first of these calls was made on September 5. In

it, Paz and Rodriguez discussed Paz's request for five kilograms

of cocaine in exchange for $100,000 and of an additional five

kilograms of cocaine on consignment. Rodriguez asked Paz, "[F]or

how many are you striking for?" Paz responded, "Okay, tell him

that we can get five for cash and five on credit for me." Paz

testified that he had made this telephone call to Rodriguez at

home because he believed Gonzalez-Rivera's telephone at work was

being tapped. He further testified that Rodriguez was acting as

15
. These items included a receipt for a $25 money order for
Jose Cruz; the work and beeper numbers for Gonzalez-Rivera; the
home, beeper, and cellular telephone numbers for Paz; and the
home phone numbers of Ortega and another codefendant.
a messenger for Gonzalez-Rivera. Clouse confirmed that this call

was drug related.

During the September 6 call, Paz informed Rodriguez

that $15,000 from another drug deal had been stolen from him the

night before at Rodriguez's cousin's house in New York. During

this conversation, Rodriguez told Paz that she thought he had

lost "material" or "sugar for coffee." Clouse testified that

Rodriguez's use of the word "material" was a code word for

cocaine and that this was a drug related call.

Two of the October calls took place on October 11,

1991. The third October call took place on October 17, 1991.

During it, Rodriguez urged Paz to call Gonzalez-Rivera.

Rodriguez expressed concern that Paz and Gonzalez-Rivera were not

talking to each other, at which point Paz responded that he

needed work to pay his debts. Clouse identified this as a drug

related call in which Paz told Rodriguez that he needed cocaine

to sell. Paz's testimony confirmed Clouse's interpretation.

In adopting the prejudicial error argument advanced by

Gonzalez-Rivera, Rodriguez is essentially asserting that the

October calls had the effect of tying her to the conspiracy.

However, we agree with the government that Rodriguez's September

5, 1991, conversation established her active role in the

conspiracy. In conducting a harmless error analysis, we need

not disprove every reasonable possibility of prejudice to the

defendant. Rather, we shall affirm in those cases in which we
have a sure conviction that the error did not prejudice the

defendant. See Jannotti, 729 F.2d at 219-20. In this instance,

we conclude that the evidence of the September 5, 1991, call and

the testimony concerning its substance is sufficient to affirm

Rodriguez's conviction.

C. Santiago Gonzalez

Santiago Gonzalez was convicted of one telephone count

which was based on the tape of an improperly admitted October

phone call (Count Twenty-One). The government concedes that his

conviction on this count must be reversed and we will do so.

Gonzalez's remaining convictions include conspiracy to distribute

in excess of five kilograms of cocaine (Count One) and two counts

of distribution of cocaine (Counts Fourteen and Sixteen).

Gonzalez's argument concerning the prejudicial impact

of the October tapes is, in our view, intertwined with his other

arguments on appeal. Consequently, we will consider all of his

contentions together. He advances three major challenges to his

convictions.

First, Gonzalez contends that the district court

committed plain error when it failed, sua sponte, to sever his

trial from Joaquin Mordago's once it became clear that "Mordago's

antagonistic defense prevented [Gonzalez] from receiving a fair

trial." Gonzalez contends that Mordago's "authorized informant"

defense was antagonistic to his own defense, thereby presenting

the jury with no option but to convict at least one of them.
Gonzalez claims that once Mordago's defense unfolded at trial,

the district court was required to grant a mistrial and

severance.

Second, Gonzalez asserts that his conspiracy conviction

should be vacated because there was a variance between the single

conspiracy charged in the indictment and the evidence presented,

which demonstrated multiple conspiracies. Gonzalez contends that

the prejudice resulting from the purported variance was the

impact it had on the district court's decision to try all of the

defendants together rather than sever Gonzalez's trial from his

co-defendants' or later from Mordago's.

Third, Gonzalez contends that the admission of the

October tapes was not harmless error because it supplied the only

evidence to support the government's contention that Gonzalez was

part of the single conspiracy alleged in Count One. As a result,

the admission of the October tapes compounded the purported error

of the variance between the single conspiracy charged in Count

One and the multiple conspiracies which Gonzalez claims were

described at trial. While Gonzalez did not expressly set out the

prejudicial impact flowing from the admission of the October

tapes, it is clear from his assertion relating to the "variance"

challenge that he contends that it was only through the October

tapes that the government established that Gonzalez was aware

that Paz had other sources of supply. In sum, Gonzalez asserts

that these three errors, individually and cumulatively,
prejudiced his right to a trial separate from co-defendant

Mordago, given the claim that Mordago presented a mutually

antagonistic defense. Because we find that Gonzalez was not

prejudiced in this manner, we hold that his convictions must be

upheld.

i. Gonzalez's Claim of Variance

A defendant alleging a variance between a single

conspiracy charged in an indictment and the proof presented at

trial must demonstrate, first, that there was such a variance

and, second, that the variance prejudiced one of his substantial

rights. United States v. Kelly, 892 F.2d 255, 258 (3d Cir. 1989)

(citing United States v. Schurr, 755 F.2d 549, 553 (3d Cir.

1985)). However, even if we were to find that Gonzalez has

demonstrated that a variance existed here, we are not convinced

that he was prejudiced.

First of all, in the matter of the variance, a single

drug conspiracy may involve numerous suppliers and distributors

operating under the aegis of a common core group. United States

v. Theodoropoulos, 866 F.2d 587 (3d Cir. 1989). To establish a

single conspiracy, the prosecutor need not prove that each

defendant knew all the details, goals or other participants. See
United States v. Padilla, 982 F.2d 110 (3d Cir. 1992). The

prosecution must, however, demonstrate that a defendant, charging

variance, knew that he was part of a larger drug operation. Id.

at 114; Theodoropoulos, 866 F.2d at 594. Gonzalez argues that
the only way by which the government showed he was aware of the

larger operation was through two of the October telephone calls.

However, our review of the record does not support this

allegation. There was also separate testimony by Paz concerning

his discussions with Gonzalez about cocaine in New York which

needed to be treated in order to dry it. Because there was

evidence through Paz's testimony, which demonstrated that

Gonzalez was aware of the larger operation, the jury's finding of

a single conspiracy is supported even without the October tapes.

Moreover, pursuant to Kelly, demonstrating that a variance

existed is not enough. Even if there were not admissible

evidence to establish the single conspiracy, still Gonzalez must

show prejudice. In his brief, Gonzalez argues that the prejudice

he suffered from the purported variance was his being tried with

Mordago: "The prejudice to [Gonzalez] was that even though he

made a strong case for separating his trial from his co-

defendants, the district court was naturally reluctant to grant

the severance due to the fact that [Gonzalez] was charged with

being part of a single conspiracy. Consequently, he was tried

with Mordago. Mordago, in presenting his 'authorized informant'

defense, implicated [Gonzalez] in the drug conspiracy." This

claimed prejudice is the same as the claimed prejudice resulting

from Gonzalez's initial challenge, i.e., that the district court
committed plain error when it failed, sua sponte, to sever

Gonzalez's trial from Mordago's once it became clear that
Mordago's antagonistic defense prevented him from receiving a

fair trial. We will turn, therefore, to that assertion.

ii. Gonzalez's Claim of Prejudice

Gonzalez filed a pretrial motion to sever his case from

the New York based co-defendants, contending that the government

would be unable to prove a unified conspiracy and that he would

be prejudiced by being tried with these co-defendants. This

motion was denied by the district court and Gonzalez does not

challenge it on appeal. Rather, Gonzalez now asserts, for the

first time, that "unforeseen developments" at trial, i.e.,

Mordago's "authorized informant" defense, required that the

district court grant, sua sponte, a mistrial and severance as to

Gonzalez. In support, Gonzalez cites our decision in United

States v. Sandini, 888 F.2d 300, 309 (3d Cir. 1989), cert.

denied, 494 U.S. 1089 (1990), for the proposition that "[t]he

district court has to grant severance if it becomes obvious after

the commencement of trial that joinder is no longer appropriate."

As an initial matter, we do not read Sandini as broadly

as Gonzalez suggests we should. We noted in Sandini that, in

considering whether a district court committed plain error in

failing to grant a mistrial and severance sua sponte based on
developments at trial, "we acknowledge that an appropriate denial

of a pretrial motion for severance does not preclude a later

ruling that there should be a severance because of prejudice

which develops at trial." 888 F.2d at 309 (citing Schaffer v.
United States, 362 U.S. 511, 516 (1960)). Sandini does not,

however, announce a mandatory requirement for severance. A

finding that severance might be appropriate based on developments

at trial does not compel the conclusion that a severance is

required whenever a trial fails to unfold as expected. As we

proceeded to note in Sandini:
[I]t is risky business for a judge on his own
motion to declare a mistrial, as the
defendant may thereafter contend that he was
entitled to a completion of the first trial
so that a retrial is barred by double
jeopardy principles. Thus, the defendant
who, without asking for a mistrial gets one,
will surely argue, and not unreasonably, that
if he did not, as here, regard the alleged
error as serious enough even to prompt his
reaction, a court is effectively granting a
mistrial over his objection without "manifest
necessity" so that his retrial is barred.
Furthermore, we point out that declaring a
mistrial because of the conduct at trial of a
codefendant, as opposed to that of the
government, may well encourage collusive
conduct by defendants at a joint trial so as
to set the stage for mistrials and possible
reversals. The considerations we have set
forth lead us to approach [defendant's]
argument with considerable caution.

Id.

As to what was the "unforeseen development," Gonzalez

contends that he "did not anticipate . . . that Mordago would

implicate him in drug dealing, and discredit his defense that he

was a complete stranger to the drug conspiracy."

Our review of the record, however, clearly indicates

that Mordago's defense was anything but unforeseen. More than a
month before the trial, all defense counsel involved in this

case, including Gonzalez's, were alerted to Mordago's intention

to assert an authorized informant defense. On July 20, 1992,

each defense counsel was sent a copy of the government's response

opposing Mordago's pretrial motion to disqualify the United

States Attorney's Office from prosecuting him. Mordago's motion

was based on the claim that he was acting as a government

informant in connection with the charges contained in the

indictment. Govt. App. at 608 ("Consolidated Response in

Opposition to Defendant's Motions to Disqualify and Compel

Discovery"). Even a cursory reading of the government's response

reveals Mordago's intended defense. Early in its response, the

government stated: "In his motion to disqualify, Mordago claims

that he was acting as a government informant in connection with

these charges." Several pages later, the government stated: "In

his motion to disqualify, Mordago alleges that in light of the

public authority defense that he intends to assert, AUSA Cohan

may be called as [a] defense of prosecution witness." Thus,

Gonzalez's counsel was on notice at least a full month before the

trial commenced that Mordago planned to assert the government

informant defense.

Notwithstanding this information, Gonzalez failed to

amend his pretrial motion for severance.16 In addition, not once

16
. Gonzalez filed his pretrial motion for severance on May 19,
1992. This motion did not specifically allege any prejudice from
being jointly tried with Mordago. Rather, the focus of the
defendant's motion was his claim that evidence against the New
during the trial did Gonzalez's counsel object to what he now

claims were prejudicial errors made by the district court

relating to Mordago's defense. Rather, Gonzalez argues that the

court, sua sponte, should have granted a severance once Mordago's

defense became clear.

Because Gonzalez did not object to Mordago's defense or

to the failure to sever, we review the district court's action

for plain error. In reviewing for plain error, we are guided by

the Supreme Court's recent decision in United States v. Olano,

113 S. Ct. 1770, 1776 (1993) which noted that:
There must be an "error" that is "plain" and
that "affect[s] substantial rights."
Moreover, Rule 52(b) leaves the decision to
correct the forfeited error within the sound
discretion of the Court of Appeals, and the
court should not exercise that discretion
unless the error "'seriously affect[s] the
fairness, integrity, or public reputation of
judicial proceedings.'"

(citations omitted).

In order for Gonzalez to demonstrate that the district

court committed plain error, the defendant must first establish
that he was entitled to a trial separate from Mordago. If

Gonzalez fails to establish that he was entitled to a separate

trial, then our analysis must stop, for the district court would

(..continued)
York based conspirators would "spillover" and unduly prejudice
Gonzalez as it related to Count One of the indictment. The
defendant's motion, never amended to include any potential
prejudice from being joined with Mordago, was denied on August
26, 1992.
not have committed any error at all. Before turning to the

specific circumstances which form the basis of Gonzalez's claim,

we must examine the substantive aspects of a failure to sever.

In Zafiro v. United States, 113 S. Ct. 933, 936 (1993),

the Supreme Court considered whether Federal Rule of Criminal

Procedure 14 "requires severance as a matter of law when co-

defendants present 'mutually antagonistic defenses.'" 113 S. Ct.

at 936.17 After expressing the federal system's strong

preference for joint trials, the Court held that severance was

not automatically required in such cases. The Court stated:
Mutually antagonistic defenses are not
prejudicial per se. Moreover, Rule 14 does
not require severance even if prejudice is
shown; rather, it leaves the tailoring of the
relief to be granted, if any, to the district
court's sound discretion. . . . We believe
that, when defendants properly have been
joined under Rule 8(b),18 a district court

17
. Fed. R. Crim. Pro. 14 provides in part:

If it appears that a defendant or the

government is prejudiced by a joinder of

offenses or of defendants in an indictment or

information or by such joinder for trial

together, the court may order an election or

separate trials of counts, grant a severance

of defendants or provide whatever other

relief justice requires.
18
. Fed. R. Crim. Pro. 8(b) provides:
 should grant a severance under Rule 14 only
if there is a serious risk that a joint trial
would compromise a specific trial right of
one of the defendants, or prevent the jury
from making a reliable judgment about guilt
or innocence.

Id. at 938 (citations omitted).

While the Court did not delineate all the circumstances

in which a defendant could be prejudiced, it did note the types

of situations in which prejudice might develop.
Such a risk might occur when evidence that
the jury should not consider against a
defendant and that would not be admissible if
the defendant were tried alone is admitted
against a codefendant. For example, evidence
of a codefendant's wrongdoing in some
circumstances erroneously could lead a jury
to conclude that a defendant was guilty.
When many defendants are tried together in a
complex case and they have markedly different
degrees of culpability, the risk of prejudice
is heightened. See Kotteakos v. United
States, 328 U.S. 750, 774-775, 66 S. Ct.
1239, 1252-1253, 90 L.Ed. 1557 (1946).
Evidence that is probative of a defendant's
guilt but technically admissible only against
a codefendant also might present a risk of
prejudice. See Bruton v. United States, 391
U.S. 123, 88 S. Ct. 1620, 20 L.Ed.2d 476
(1968).

Id.
(..continued)
Two or more defendants may be charged in the
same indictment or information if they are
alleged to have participated in the same act
or transaction or in the same series of acts
or transactions constituting an offense or
offenses. Such defendants may be charged in
one or more counts together or separately and
all of the defendants need not be charged in
each count.
 While Gonzalez's pretrial motion was based on a

Kotteakos claim, he does not appeal the denial of that motion.

Rather, he now asserts a Bruton related violation. His claim of

prejudice is based on the proposition that Mordago's government

informant defense resulted in the admission of certain evidence,

allegedly incriminating to Gonzalez, without providing Gonzalez

an opportunity to cross-examine Mordago.

Gonzalez points to several portions of Mordago's

defense which, he alleges, specifically prejudiced his right to a

fair trial. To review these, we will start with Mordago's

release from prison on October 3, 1991. Mordago talked with law

enforcement officials three times between the time of his release

and his arrest on the current charges on November 8, 1991.

During each conversation, Mordago was advised by the government

that he was not to engage in any illegal activity until he was

authorized to do so by his parole officer or another law

enforcement official. Despite these warning, Mordago quickly

became involved in drug activity.

In his discussions with law enforcement officials on

October 10, November 5, and November 7, Mordago provided

information concerning Paz and other drug traffickers. These

discussions were recorded in FBI 302 reports, which were provided

to Mordago's counsel prior to trial. The use of these reports by

Mordago's counsel serves as the basis for Gonzalez's contentions.

Gonzalez claims that these reports bolstered Mordago's authorized
informant defense while implicating Gonzalez in the conspiracy,

thereby violating his right to a fair trial. However, our review

of the record indicates that Gonzalez's claim lacks merit.

First, Gonzalez directs our attention to Mordago's

counsel's cross-examination of Paz. There, counsel attempted to

elicit from Paz whether Mordago ever informed Paz that Mordago

had told government agents of Gonzalez's activity.19 The

government immediately objected, asserting that defense counsel

was attempting to establish through his questions the fact that

Mordago actually provided the information to the government which

was the basis of counsel's questions. The court sustained the

government's objection and reminded the jury that "the questions

of lawyers do not themselves constitute evidence . . . . You

should not assume anything from those questions because they are

not embraced in a probative answer as to the occurrence of the

19
. Cross-examination of Paz by Mordago's counsel:

Q: And [Mordago] also did not tell you that
he had provided information before the time
of his arrest on a person by the name of
Santiago Gonzalez, correct?

A: No, he didn't tell me nothing.

Q: He also didn't tell you slightly before or
after the time of your arrest, that he
provided information on drug dealing that
referred to Miami?

Government: Judge, I'll object to this line
of questioning.

TT at 45 (Sept. 11, 1992; Afternoon Session).
events assumed therein." TT at 48 (Sept. 11, 1992; Afternoon

Session). Given the court's immediate curative instruction, we

find no prejudice to Gonzalez from this attempted cross-

examination.

Gonzalez next asserts that the government bolstered

Mordago's authorized informant defense to the detriment of

Gonzalez's own defense when it offered the testimony of FBI agent

Judith Tyler, who had talked with Mordago on October 10, 1991.

Agent Tyler testified that Mordago told her that Paz was selling

between twenty-eight and thirty kilograms of cocaine a week from

a supplier in Miami. Gonzalez asserts that since the government,

through Paz's testimony, established Gonzalez as Paz's Miami

connection, the jury would have presumed that Mordago was

referring to Gonzalez when he told agent Tyler that Paz had a

Miami supplier. But agent Tyler did not testify that Mordago

informed the government that Gonzalez was Paz's Miami connection.

Moreover, there was other testimony concerning a Florida

supplier, i.e., Oscar Fuentes. At best, the jury could only

infer a connection. We do not find any undue prejudice to

Gonzalez resulting from this testimony.20

Gonzalez next claims that he was prejudiced by

statements that Mordago made to FBI agents, which statements were

20
. Gonzalez offers the same exact argument as it relates to the
testimony of AUSA Barbara Cohan concerning the October 10, 1991,
conversation with Mordago. For the reasons stated in the main
text, we do not find any undue prejudice to Gonzalez resulting
from this testimony.
testified to by the agents, despite the fact that Gonzalez did

not have the opportunity to cross-examine Mordago. Yet, the

premise for Gonzalez's purported right to cross-examine is based

on the assertion that Mordago inculpated Gonzalez when talking to

law enforcement officials. A review of the evidence suggests

otherwise.

Agent Tyler testified that Mordago told her that one of

Paz's associates, Theodore Santiago (a/k/a "Poppo"), was selling

between 100 and 150 kilograms of cocaine a week.21 Agent Tyler

mentioned this aspect of her conversation with Mordago several

times during her testimony. Each time, she stated that Mordago's

reference was to Theodore Santiago.22
21
. Theodore Santiago was one of the twelve individuals named in
the government's indictment, although he was not tried with these
defendants.
22
. Cross-examination of agent Tyler by Gonzalez-Rivera's
counsel concerning the agent's meeting with Mordago on November
5, 1991:

Q: Did [Mordago] not tell you that Mr. Paz
had an associate living in Philadelphia?

A: Yes, he did.

Q: That individual was known as Santiago, right?

A: Yes.

Q: Also known as Poppo; right?

A: Yes.

Q: Did you know who Poppo was?

A: No.
 The government also presented the testimony of FBI

agent Francis Thiel, who was with agent Tyler when she met with

Mordago on November 5, 1991. Agent Thiel's testimony confirmed

that Mordago's references to Santiago during this conversation

were to Theodore Santiago, not Santiago Gonzalez.23
(..continued)
Q: Do you know who Theodore Santiago is?

A: No.

Q: [Mordago] told you, did he not, that Poppo
moved between 100 and 150 kilograms of
cocaine a week, right?

A: Yes.

TT at 24-25 (Sept. 15, 1992; Morning Session).

After this cross-examination, Agent Tyler was cross-
examined by Mordago's counsel with regard to the November 5, 1991
meeting:

Q: Do you recall Mr. Mordago saying there is
a Colombian called Tosti T-O-S-T-I who lives
on White Plains Road, the Bronx, New York,
associated with the Cali Cartel?

A: Yes.

Q: Did he also mention an associate of Mr.
Paz named Santiago also known as Poppo?

A: Yes, he did.

Q: Did he state that Poppo moves between one
hundred to 150 kilos of cocaine per week?

A: Yes, he did.

Id. at 47.
23
. Direct examination of Agent Thiel by the government
concerning Thiel's meeting with Mordago on November 5, 1991:
(..continued)
Q: Now what other information did Joaquin
Mordago provide on that date, November 5th,
1991?

A: He mentioned that there was another
associate of Mr. Paz by the name of Mr.
Poppo, who was a drug dealer in Philadelphia.

TT at 70 (Sept. 15, 1992; Morning Session).

Cross-examination of agent Thiel by Gonzalez-Rivera's
counsel concerning the agent's meeting with Mordago on November
5, 1991:

Q: [Mordago] also identified an individual
named Santiago or Poppo who could obtain
between 100 and 150 kilos of cocaine per
week, correct?

A: That is correct.

Q: I heard you testify on direct examination
you were part of this case, right?

A: Yes.

Q: You were monitoring the tapes, right?

A: Yes.

Q: Do you know an individual named Theodore
Santiago?

A: Yes, sir.

Q: He is indicted in this case, right?

A: Yes.

Q: He has a nickname of Poppo, correct?

A: That is correct.

Id. at 79-80.
 Notwithstanding the specificity of agents Tyler's and

Thiel's testimony, Gonzalez asserts that the jury was left with

the impression that Mordago provided the government with

information on him, rather than on Theodore Santiago. In support

of this argument, Gonzalez asserts that a telephone number which

Mordago associated with "Poppo" and provided to agents Tyler and

Thiel was Gonzalez's girlfriend's telephone number.24 In

essence, Gonzalez is asserting that any reference in the agents'

testimony to Theodore Santiago was in reality a reference to

Santiago Gonzalez.

Gonzalez argues that the agents' testimony concerning

Theodore Santiago, much of it solicited during cross-examination

in support of Mordago's authorized informant defense, violated

Gonzalez's right to a fair trial. Gonzalez asserts that not only

was he unable to cross-examine Mordago as to these statements,

but Mordago's defense was antagonistic to Gonzalez's defense, to

the point of being irreconcilable and mutually exclusive. In his

brief, Gonzalez asserts: "At the close of all the evidence, the

jury faced a clear choice of either totally discrediting

Mordago's claim that he had made pretrial incriminating

statements against [Santiago Gonzalez], or rejecting out-of-hand

24
. Both Tyler and Thiel testified that Mordago had given them a
telephone number for Theodore Santiago. During his defense,
Gonzalez presented Maria Soto, who testified that Gonzalez lived
with her in Philadelphia. Soto testified that the telephone
number, previously identified as Theodore Santiago's, was her
number.
[Santiago Gonzalez's] defense that he was completely innocent of

any involvement in Paz's drug dealing."

Gonzalez goes on to assert that this prejudice was

compounded by Mordago's closing argument, in which Mordago's

counsel, as part of his client's authorized informant defense,

pinpointed Gonzalez as one of the traffickers that Mordago

revealed to the government. Gonzalez's counsel did not object to

this summation. Rather, he now asserts that counsel's

"communication to the jury of Mordago's incriminating statements

against [Gonzalez] was the same as the admission of a co-

defendant's confession implicating another defendant in a joint

trial when the codefendant does not take the stand."

As an initial matter, Bruton v. United States, 391 U.S.

123 (1968) does not apply when an attorney for a co-defendant

implicates the defendant during closing argument. Sandini, 888

F.2d at 311. "We have . . . never held that Bruton applies when

the attorney for a codefendant implicates a defendant during a

closing argument and we perceive of no reason to do so because

the arguments of counsel are simply not evidence. Bruton is

directed toward preserving a defendant's right to cross-

examination, and thus has nothing to do with arguments of counsel

based on their interpretation of the evidence." Id. at 310-11.
Gonzalez attempts to distinguish Sandini based on the

proposition that there was evidence to support counsel's

assertions that Mordago had identified Gonzalez as Paz's Miami
drug supplier. In essence, Gonzalez is asserting that the

underlying evidence violated Bruton. Thus, we examine the use of

the FBI 302 reports to see if a Bruton violation occurred.

We reject Gonzalez's argument on two grounds. First,

the FBI 302 reports were never published to the jury.25 Second,

Gonzalez reads too much into the testimony of agents Tyler and

Thiel. As previously discussed, both agents specifically

testified that Mordago provided information on Theodore Santiago

(a/k/a "Poppo"), not Gonzalez. If the agents' testimony of what

Mordago told them expressly inculpated Gonzalez, clearly there

would be a Bruton problem and a stronger case for severance.

However, the evidence highlighted by Gonzalez provides little

support for reversing his conviction.

In addition, we do not believe that Gonzalez was

entitled to a mistrial and severance based on our reading of

Zafiro. Zafiro confirms that defendants have a heavy burden in

gaining severance. We find that Gonzalez has failed to meet this

burden and that the defendant was not entitled to a severance.

Moreover, in regard to the government informant

defense, Mordago's defense was not mutually exclusive of

Gonzalez's defense that he was not aware of Paz's drug dealing

25
. In fact, the district court was particularly careful in
preventing a Bruton problem. After summation, Mordago's counsel
sought to have the FBI 302 reports published to the jury. The
court denied the motion, citing the potential prejudice to
Gonzalez. Thus, not only did the district court not commit plain
error as its relates to Gonzalez's right to a fair trial, it
sought to avoid any undue prejudice to the defendant.
activities. Gonzalez testified that he was not involved in Paz's

drug trafficking and that he did not know, when he met with agent

Tapia, why MRK owed Paz $97,500. The jury could have believed

that Mordago was a government informant as his testimony related

to Theodore Santiago and other traffickers, while also finding

that Gonzalez was not involved in any drug activity. Thus, it

would have been possible to acquit both Mordago and Gonzalez.

Based on our review of the evidence at trial, we do not believe

the defendants presented mutually exclusive defenses.

Moreover, the government presented a substantial amount

of evidence in support of Gonzalez's role in trafficking cocaine.

Gonzalez's conviction on Count Fourteen for distribution of a

controlled substance was based on the September 13, 1991, sale of

one kilogram of cocaine for $21,000 to agent Gonzalez, working

undercover at MRK. This transaction was captured on videotape

and the tape was admitted into evidence. Gonzalez's conviction

on Count Sixteen for distribution of a controlled substance was

based on the October 11, 1993, sale of five kilograms of cocaine

to agent Gonzalez. Paz and agent Gonzalez agreed that agent

Gonzalez would pay $19,500 per kilogram, for a total sale of

$97,500. Our review of the evidence indicates that the

government demonstrated Santiago Gonzalez's active involvement in

this cocaine transaction.

In sum, we find that the district court did not commit

error in deciding not to sever Gonzalez's trial from Mordago's.
We further find that there was substantial evidence, exclusive of

the October tapes to support Gonzalez's conviction. We will,

therefore, uphold Gonzalez's convictions on Counts One, Fourteen,

and Sixteen.

iii. Fine and Restitution

In addition to his term of imprisonment and supervised

release, the district court imposed a $5,000 fine on Gonzalez and

ordered him to pay $21,000 in restitution. Gonzalez appeals both

the fine and restitution, asserting that the district court erred

in failing to make express findings as to his ability to pay.

See United States v. Demes, 941 F.2d 220, 223 (3d Cir.), cert.

denied, 112 S. Ct. 399 (1991). The government concedes that no

such express findings were made. We will therefore remand the

issue of the fine to the district court for it to make express

findings regarding Gonzalez's ability to pay a fine.

With regard to the restitution ordered by the district

court, the government contends that calling this sanction

"restitution" was simply a clerical error which can be corrected

without remand. The jury returned a special verdict that

Gonzalez should forfeit $20,000 based on Count Twenty-Five. The

government claims that the district court mistakenly ordered

Gonzalez to pay $21,000 as restitution instead of directing the

defendant to comply with the jury's special verdict on

forfeiture. The government further asserts that under Fed. R.

Crim. Pro. 36, a clerical error in a judgment may be corrected by
the district court at any time. We conclude, however, that the

scope of the error is not that clear. We will, therefore, remand

this issue to the district court to clarify whether or not it

erred in denominating forfeiture as restitution and whether it

misstated the amount of forfeiture if that is what was intended.

If the district court intended to impose payment of restitution,

it should also on remand make express findings as to such

restitution.

D. Melba Quintero

Melba Quintero was convicted of three telephone counts

which the government concedes must be reversed (Counts Seventeen,

Nineteen, and Twenty). We will do so. Quintero's remaining

convictions are for conspiracy to distribute in excess of five

kilograms of cocaine (Count One), distribution of cocaine (Count

Twenty-Two), and possession with intent to distribute cocaine

(Count Twenty-Three). Quintero asserts that the admission of the

October tapes was prejudicial error as to these three

convictions. The government maintains that the admission of the

October tapes was harmless error based on the substantial

evidence, excluding the October calls, against Quintero. This

evidence includes testimony by Paz and FBI agent Joaquin Garcia

("Garcia"), a videotaped meeting and two telephone calls between

Quintero and Garcia, and items seized from Quintero at the time

of her arrest.26
26
. These items included the address of Cruz, and the home, work
and beeper numbers for Gonzalez-Rivera.
 Paz testified that he received two and one-half

kilograms of cocaine on consignment from Quintero and codefendant

Elsa Cruz during a trip to New York shortly before his arrest.

On October 31, 1991, Paz sold two of these kilograms to agent

Gonzalez at MRK. This was the basis for Quintero's conviction on

Count Twenty-Two for aiding and abetting the distribution of

cocaine. Under the plan developed by the FBI for Paz's arrest,

agent Gonzalez agreed to accept two of the kilograms of cocaine

that Paz brought that day but to refuse the remainder. On

leaving MRK, Paz was arrested with the remaining cocaine in his

possession. This was the basis for Quintero's conviction on

Count Twenty-Three for aiding and abetting Paz in the possession

with intent to distribute cocaine. We find that there was

adequate evidence, without the tapes, to support these

convictions.

Turning to the conspiracy conviction, soon after Paz's

arrest, the FBI undertook a further investigation of Quintero.

An undercover operation was initiated in which Quintero was

provided with agent Garcia's beeper number and told that a debt

Garcia owed Paz would be paid to her instead. Approximately four

weeks after Paz's arrest, Quintero contacted Garcia. Garcia

testified that during their initial conversation he advised

Quintero that he had some money that he owed Paz that he would

give to her instead. After several more telephone conversations,

Garcia and Quintero agreed to meet at a hotel in Queens, New
York, on December 10, 1991. Garcia brought with him another

undercover agent. Quintero was accompanied by Elsa Cruz.

A videotape of the December 10 meeting was introduced

into evidence. At the start of the meeting Quintero introduced

Cruz as "her partner." Garcia asked Quintero and Cruz how much

money Paz owed them. They responded that they had provided Paz

with more than two kilograms of cocaine.27 Garcia testified that

27
. The following conversation was recorded on December 10,
1991.

Agent Garcia ("AG"): And how much money does
Cristobal owe you two?

Elsa Cruz ("EC"): Two kilos and two thousand
twenty-seven.

AG: Two kilos and two thousand twenty-seven?

Melba Quintero ("MQ"): No. . . . Two hundred
twenty-seven.

AG: How is that?

EC: Yes. It's two hundred. Two hundred. . .
It was two kilos and two hundred and twenty-
seven.

AG: Two hundred twenty-seven thousand dollars?

EC: Nooo!

MQ: No. . . Two kilos.

EC: It was two kilos and two hundred and
twenty-seven grams.

AG: Ah . . . grams.

TT at 59-60 (Sept. 14, 1992; Morning Session).
he understood from this conversation that Paz owed them money for

this amount of cocaine.28

In her defense, Quintero admitted that this

conversation was about cocaine. She asserted, however, that this

was a ploy that she and Elsa Cruz created in order to get back

money which Quintero had given Paz for the purchase of a car.

Quintero testified that any reference to cocaine during this

meeting was an act in an effort to get Garcia to give them the

money that he purportedly owed Paz. During this meeting, Garcia

gave Quintero and Cruz $2,000 as a partial payment.29

Quintero seeks to discount the value of the

videotape, asserting that it "cannot stand on [its] own once Paz'

testimony is discounted." Our review of the transcript, however,

convinces us that it can stand very well on its own without

support from the October tapes. It was up to the jury to judge

Quintero's credibility. We do not find it likely, in view of the

other substantial evidence, that the jury's assessment of

credibility was altered by the improper admission of the October

tapes. Not only did Paz testify to receiving two and one-half

28
. There were references throughout the forty minute meeting to
cocaine and drug transactions. At one point, Quintero and Cruz
asked Garcia if he could get a copy of the police report of Paz's
arrest from Paz's girlfriend. Garcia testified that it is common
for drug traffickers to show such records to their suppliers in
an effort to be released from any debt owed on the cocaine
seized.
29
. This $2,000 was the basis for Quintero's conviction in Count
Twenty-Eight for criminal forfeiture.
kilograms of cocaine from Quintero, the jury was presented with a

videotaped conversation in which Quintero specifies to agent

Garcia the amount of cocaine that she delivered to Paz. The jury

had the opportunity to hear and evaluate Quintero's explanation

for her statements on the videotape. They choose not to believe

her.

We find that the admission of the October tapes

constituted harmless error and that there is sufficient evidence

to affirm Quintero's convictions on Counts One, Twenty-Two, and

Twenty-Three.

E. Joaquin Mordago

Joaquin Mordago was convicted of one telephone count

which the government concedes must be reversed (Count Eighteen).

Again, we will do so. Mordago's remaining conviction is for

conspiracy to distribute in excess of five kilograms of cocaine

(Count One). Mordago asserts a number of specific reasons why

the admission of the October tapes constituted prejudicial error

as to Count One. The government contends, on the other hand,

that the admission of the October tapes was harmless error based

on the other evidence against Mordago. This evidence included

testimony by Paz, a videotape in which Paz was recorded talking

with someone, purported to be Mordago, about the quality of

certain cocaine, and items seized from Mordago at the time of his

arrest.30
30
. These items included the beeper numbers for Paz and
Gonzalez-Rivera, and the telephone number of Gonzalez.
 Mordago's role in the conspiracy involved his drying

two and one half kilograms of "wet" cocaine which Paz received

from Quintero and Cruz. Paz testified that Mordago helped him

dry the cocaine by mixing it with acetone. According to Paz,

Mordago had attempted to sell the three kilograms of cocaine but

returned them to Paz when Paz believed that he had a willing

buyer in agent Gonzalez at MRK. Paz stated that during the

October 31 transaction at MRK, he called Mordago to complain

about the quality of the cocaine. Paz's part of this

conversation was recorded on the videotape, which was played for

the jury.31 There is no evidence, independent of Paz's

31
. The following is testimony by Paz on direct examination by
the government.

Q: Now, during this part of the videotape,
where are you seated?

A: Behind a desk.

Q: What were you doing?

A: I was making a telephone call.

Q: Who were you calling?

A: Joaquin Mordago.

Q: What were you saying to Joaquin Mordago?

A: That I was having problems with that kilo,
that what he had done was some shit.

Q: Now looking at the top of page six of the
transcript book, you stated towards the top
of that page the following: There is one
that you made for me there, that doesn't even
have a shape. It doesn't even have shape.
testimony, of the identity of the person to whom he was talking

during this conversation.

In addition to Counts One and Eighteen, Mordago was

indicted on Count Sixteen for distribution of cocaine. The jury

acquitted him on this count. Count Sixteen was based on the

October 11, 1993, sale of five kilograms of cocaine to agent

Gonzalez by Paz and Santiago Gonzalez. The government's evidence

tying Mordago to the distribution of this cocaine was testimony

by an FBI agent who on November 8, 1991, arrested Mordago in the

Comfort Inn hotel room registered to Gonzalez, twenty minutes

after Gonzalez was arrested in the parking lot.

(..continued)
No, but we have to do that again. Now, what
were you referring to in that part of the
conversation that it didn't have shape?

A: The kilo that [agent Gonzalez] did not
want.

Q: When you stated "but we have to do that
again man," what had to be done again?

A: That kilo that didn't have shape.

Q: What was going to be done to give that kilo shape?

A: Again, to take it, melt it, put it in a
vase, I don't know what the man was going to
do.

Q: That man was going to do, who were you
referring to?

A: Joaquin Mordago.

TT at 42-43 (Sept. 3, 1992; Morning Session).
 The defense asserted that Mordago was present in

Gonzalez's hotel room as part of his efforts to provide

information to the government. The government presented several

law enforcement officials who testified that Mordago had not been

authorized to act in such a manner. We can only hypothesize why

the jury acquitted Mordago on Count Sixteen. Mordago asserts

that the jury "apparently accepted" his authorized informant

defense as it related to Count Sixteen. Equally plausible,

however, is that the jury believed that the evidence against

Mordago, arrested while waiting in Gonzalez's hotel room, was

insufficient to find that he participated in the distribution of

the five kilograms of cocaine to MRK. Given the fact the

government presented no evidence that Mordago supplied,

delivered, or sought direct payment for the five kilograms which

were given to agent Gonzalez on consignment, it is quite possible

that the jury did not believe the government had proved beyond a

reasonable doubt Mordago's participation in the distribution.

The jury was presented with evidence of four taped

phone conversations between Paz and Mordago during the month of

October, one on October 12, two on October 17, and one on October

23. Agent Clouse testified that during the October 12 telephone

conversation, Mordago offered to supply Paz with a device that

Paz could use to detect wire taps and scramble telephone

conversations to avoid being intercepted.
 Paz testified about the contents of all four October

telephone conversations. In each instance, the conversation was

played for the jury, followed by Paz's testimony. During the

October 12 telephone conversation, Mordago told Paz that "I'm in

a pretty bad situation and I want to start doing something, do

you understand it?" Paz testified that he interpreted this to

mean that Mordago wanted to become involved in cocaine

trafficking. Paz also testified, based on this conversation,

that Mordago had an interest in meeting with Gonzalez-Rivera.

During the October 23 telephone conversation, Mordago asked Paz

"why don't you talk to Papo so that he get me" and later told Paz

that "I want to start working brother." Paz testified that he

understood Mordago to mean that he wanted Paz to find him some

cocaine so that he could start selling it.32

Without these taped recordings, the only evidence

presented by the government of Mordago's role in the conspiracy

was Paz's testimony and the facts surrounding Mordago's arrest.

32
. This conversation also contained a statement by Mordago that
"Alfredo is going to bring to me . . . to fix the blender . . .
you brought me yesterday." Paz testified this was a reference to
the drying and mixing of the two and one-half kilograms of
cocaine received from Quintero and Elsa Cruz. On cross-
examination, however, Paz testified that the reference may have
been to bullets for a gun that he claimed to have given Mordago.
Paz's testimony on this aspect of the recorded conversation is
ambiguous. Nevertheless, the government sought to prove that
Mordago assisted Paz by drying the cocaine received from Quintero
and Elsa Cruz. The government introduced into evidence a
telephone conversation between Paz and Gonzalez recorded on
October 28 in which Paz told Gonzalez that "Joaquin" had dried
some cocaine for him. This conversation was also inadmissible.
Mordago asserts that Paz "had an overwhelming motive and bias

against Mordago" based on the fact that Mordago had supplied

information to the government on Paz's drug trafficking activity

three weeks prior to Paz's arrest. On October 10, 1991, Mordago

informed AUSA Cohan and agent Tyler during a telephone

conversation that Paz was distributing between twenty-eight and

thirty kilograms of cocaine per week.

AUSA Cohan and agent Tyler talked with Mordago by

telephone on October 10, 1991, one week after his release from

prison. AUSA Cohan testified that she recalled that Mordago told

them that he had met Paz at a restaurant called El Kibuk and

learned that Paz was distributing between twenty-eight and thirty

kilograms of cocaine per week. Agent Tyler testified that during

this October 10 telephone conversation, Mordago "advised me that

he had met, had been to El Kibuk, and had learned that a guy

named Cristobal Paz was selling 28 to 30 kilos of cocaine from a

supplier in Miami." TT at 15 (Sept. 15, 1992; Morning Session).

Mordago's theory, if credible, gives Paz a motive to

implicate Mordago in the conspiracy in retaliation for Mordago's

role in providing the government with information concerning

Paz's drug related activity. Moreover, the only substantive

evidence establishing Mordago's role in the conspiracy outside of

the October tapes is Paz's testimony. Unlike the other

defendants recorded on the October tapes, for whom there was

independent evidence beyond Paz's testimony to prove their active
role in the conspiracy, no such independent admissible evidence

was introduced by the government with regard to Mordago.

The government responds that Mordago's arrest on

November 8 in Gonzalez's Comfort Inn hotel room was evidence of

his role in the conspiracy. However, Mordago's presence in the

hotel room did not seem that culpable to the jury. They

acquitted Mordago on Count Sixteen. The only other evidence

brought to our attention of Mordago's involvement in the

conspiracy was his possession of Gonzalez-Rivera's beeper number

at the time of his arrest.

In a trial without the October tapes, Paz's testimony,

with appropriate cross-examination, might be enough to support a

finding that Mordago participated in the conspiracy. Here,

however, the admission of the October tapes clearly disadvantaged

Mordago to a greater degree that it did his co-defendants. Based

on this analysis, we do not have a sure conviction that the

admission of the October tapes did not prejudice him.

We do not reach this conclusion on the basis that

Mordago should have been acquitted based on his authorized

informant defense.33 Rather, we only find that the admission of
33
. In crediting the information Mordago supplied to the
government on October 10, we in no way comment on the sufficiency
of Mordago's authorized informant defense. That will be for a
new jury to decide if the government seeks to retry the
defendant. It is entirely possible that the jury believed, as
the government argued, that Mordago was not authorized to engage
in the illegal activity that the government sought to prove he
engaged in. We only note the information that Mordago provided
to the government on October 10 as it impacts on the credibility
of Paz's testimony.
the October tapes constituted prejudicial error to defendant

Mordago. We will therefore reverse Mordago's conviction on Count

One.

V. Jose Cruz

Cruz is not recorded on any telephone call offered into

evidence by the government. Rather, he challenges the district

court's refusal to suppress evidence of fifteen kilograms of

cocaine found in his car during a search by the New Jersey State

police. Cruz asserts that the search of a suitcase in the trunk

of the car he was driving constituted an illegal search and

seizure, which should have resulted in the evidence obtained

being suppressed. A review of the facts culminating the search

indicates that no constitutional violation occurred and the

district court did not err in admitting the evidence obtained.

We therefore will affirm Cruz's conviction on Counts One and

Five.

VI.

For the reasons stated above, we will affirm Gonzalez-

Rivera's convictions on Counts One, Two, Five, Six, and Eight,

Rodriguez's convictions on Count One and Thirteen, Gonzalez's

convictions on Counts One, Fourteen and Sixteen, Quintero's

convictions on Counts One, Twenty-Two, and Twenty-Three, and

Cruz's conviction on Counts One and Five. We will reverse

Gonzalez's convictions on Count Twenty-One, and Quintero's

convictions on Counts Seventeen, Nineteen, and Twenty. We will
reverse Mordago's convictions on Counts One and Eighteen and

remand Count One against Mordago to the district court for a new

trial. We will reverse and remand for further proceedings the

fine and restitution imposed on Gonzalez.

Defendants Gonzalez and Quintero will have to be

resentenced because of the reversal of certain of their

convictions. The government concedes that the suppression of the

October tapes will also require that defendants Gonzalez-Rivera,

Rodriguez, and Cruz be resentenced because in calculating their

original sentences the district judge may have attached

significance to one or more of the October tapes.34 Therefore,

we will remand for resentencing defendants Gonzalez, Quintero,

Gonzalez-Rivera, Rodriguez and Cruz.

34
. The government mades this concession in its letter of March
31, 1994:
Re-sentencing for all six defendants would be
necessary because within a given guideline
range, the district court has wide
discretion. Since the judge, in his
discretion, could have attached considerable
significance to one or more of the October
tapes, re-sentencing would be appropriate to
allow the judge to re-weigh all of the
various factors which ultimately contribute
to a particular sentence.