United States v. Jadusingh

United States Court of Appeals
For the First Circuit

No. 92-2299

UNITED STATES,
Appellee,

v.

DESMOND JADUSINGH,
Defendant, Appellant.

No. 92-2404

UNITED STATES,
Appellee,

v.

KAREN WHITAKER,
Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Gilberto Gierbolini, U.S. District Judge]

Before

Breyer, Chief Judge,

Selya and Stahl, Circuit Judges.

Rachel Brill with whom Benicio Sanchez Rivera was on brief for

appellant Jadusingh.
Luz M. Rios Rosario for appellant Whitaker.

Desmond Jadusingh pro se.

Jeanette Mercado Rios, Assistant United States Attorney, with

whom Charles E. Fitzwilliam, United States Attorney and Jose A.

Quiles-Espinosa, Senior Litigation Counsel, were on brief for

appellee.

January 4, 1994

STAHL, Circuit Judge. After a three-day jury

trial, defendants-appellants Desmond Jadusingh and Karen

Whitaker were convicted of conspiring to import approximately

two kilograms of cocaine into the customs territory of the

United States in violation of 21 U.S.C. 952 and 963.

Appellants also were convicted of conspiring to possess with

intent to distribute the same cocaine in violation of 21

U.S.C. 841(a)(1) and 846. On appeal, both raise a host of

challenges to their convictions. Finding no reversible

error, we affirm.

I.

FACTUAL BACKGROUND

Because defendants challenge the sufficiency of the

evidence to support their convictions, we summarize the

evidence in the light most favorable to the government. See,

e.g., United States v. Mena-Robles, 4 F.3d 1026, 1029 (1st

Cir. 1993). Donna Marie Carr is the mother of Kimberly

Miller. In the summer of 1991, Carr was approached by

Miller's boyfriend, Desmond Jadusingh, and asked to

participate in an international drug smuggling venture.

Jadusingh wanted Carr to travel with two couriers he had

recruited, Miller and Karen Whitaker, so that Carr could

learn the operation and step in if either Miller or Whitaker

backed out. The trip was planned for January 1992.

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As the date of departure drew near, Carr approached

Pittsfield, Massachusetts, police officer Timothy Surrell

about the venture. He, in turn, alerted the Massachusetts

Drug Enforcement Agency ("MDEA") and arranged for two MDEA

agents to join him in a meeting with Carr. The group

gathered at a local restaurant, where Carr told Surrell and

the agents that she would be meeting with Jadusingh later in

the day to finalize the arrangements. Fearing that she would

not remember all of the anticipated conversation, Carr

volunteered to wear a concealed wire to the rendezvous at

Jadusingh and Miller's apartment. That evening, Carr

recorded a conversation in which Jadusingh, Whitaker and

Miller discussed their plans to travel to Puerto Rico to

purchase and import two kilograms of cocaine. Meanwhile, DEA

agents and local police, in a nearby parking lot, listened to

the live transmission of the conversation.

Two days later, on January 16, 1992, Carr drove

Jadusingh, Whitaker and Miller from Pittsfield to Jadusingh's

house on Long Island, New York, where Jadusingh gathered

money and clothing for the trip. The following morning,

Jadusingh's brother drove all four to Kennedy International

Airport, where they boarded a plane for Puerto Rico. Upon

arrival, the group, under surveillance by officers of the

federal Drug Enforcement Administration ("DEA"), traveled to

the Holiday Inn Crown Plaza in Carolina, Puerto Rico. All

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three of the women stayed in room 519 while Jadusingh, who

wanted to keep his distance from the women, stayed in room

309, which was registered to a Karen Bailey.1 Whitaker and

Carr were instructed by Jadusingh not to mention his name in

public and to contact him only by phone. They were provided

a telephone credit card number to charge calls as needed.

For the most part, Jadusingh rationed out instructions and

money through Miller on an as-needed basis. He also demanded

receipts for all expenses.

Shortly after arriving in Puerto Rico, the group

was informed by its drug contact, Etlyn, that there was an

unexpected change of plans. Jadusingh's cocaine had not been

unloaded in Puerto Rico as expected, and would have to be

picked up in Curacao.2 While Jadusingh remained in Puerto

Rico, the three women, accompanied by surveilling undercover

DEA agents, traveled to Curacao to pick up the cocaine. Once

there, Miller met with a man known only as Junior and

exchanged $5800 of Jadusingh's money for approximately two

kilograms of cocaine. In an attempt to compensate for the

unplanned detour, Junior promised an additional two kilograms

of cocaine and instructed the women to change hotels and

await delivery.

1. Karen Whitaker is also known as Karen Bailey.

2. Curacao is the main island of the Netherlands Antilles,
off the northwest coast of Venezuela.

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Meanwhile, Miller and Whitaker purchased razor

blades, plastic baggies, tape and girdles. With the help of

Carr, the two women divided and packed the cocaine according

to Jadusingh's instructions. Jadusingh, who was in frequent

phone contact with his couriers, directed them to bring the

cocaine back to the United States by way of St. Martin and

St. Thomas. According to Jadusingh, smuggling cocaine

through customs in St. Thomas was easier than through customs

in Puerto Rico. When Jadusingh subsequently discovered that

he could not fly to St. Thomas without a passport, however,

he told the women to abandon Junior's additional delivery and

return immediately to the Holiday Inn in Puerto Rico.

On January 23, 1992, Miller and Whitaker taped the

baggies containing the cocaine to their stomachs and further

secured the contraband with the girdles. Together with Carr,

they boarded a plane bound for Aruba. After spending the

night in Aruba, Miller and Whitaker again secured the cocaine

to their bodies and boarded a plane for Puerto Rico.

Meanwhile, at Puerto Rico's Luis Munoz Marin International

Airport, Senior Customs Inspector Sonia Maldonado was alerted

by DEA agents that two persons would be arriving from Aruba

with contraband. Maldonado, who was not told which

passengers would be carrying the drugs, became suspicious of

Whitaker and Miller because they were wearing bulky winter

jackets on what she described as a particularly hot day. A

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personal search of Whitaker by Maldonado and of Miller by

Senior Customs Inspector Maria Esquilin uncovered

approximately two kilograms of a concealed white powder which

was field tested and found to be cocaine. After completing

the search, Maldonado delivered Whitaker to DEA agent Eric

Johnson. Jadusingh was arrested at the Holiday Inn later

that day.

On February 5, 1992, a grand jury returned a two-

count indictment against Jadusingh, Miller and Whitaker.

Count one charged the defendants with conspiracy to import

cocaine from Aruba to the United States in violation of 21

U.S.C. 952 and 963. Count two charged the defendants with

conspiracy to possess with intent to distribute the same

cocaine in violation of 21 U.S.C. 841(a)(1) and 846. The

defendants pled not guilty at their arraignment. Jadusingh

and Whitaker were tried without Miller, who fled after being

released on bail and was later arrested and tried separately.

Carr was the government's lead witness at the trial.

Jadusingh and Whitaker were convicted on both conspiracy

counts.

II.

DISCUSSION

On appeal, Jadusingh and Whitaker together

primarily argue: (1) the court erred in allowing Donna Carr

to testify; (2) the court impermissibly admitted an audiotape

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into evidence; and (3) the court erred in denying their

respective Rule 29 motions for acquittal.3 Jadusingh

further contends 1) that the district court improperly

enhanced his sentence, and 2) that he was denied effective

assistance of counsel.4 We discuss each argument in turn.

A. Donna Carr

Jadusingh and Whitaker argue that the district

court erred in allowing Donna Carr, the government's

confidential informant and lead witness, to testify.

Specifically, the defendants claim (1) that the court should

have excluded Carr's testimony because the government failed

to disclose Carr's criminal history in violation of Brady v.

Maryland, 373 U.S. 83 (1963); and (2) that the trial judge

precluded Jadusingh's attorney from effectively cross-

examining Carr. We find both of these arguments to be

without merit.

1. Brady Violations

In Brady, the Supreme Court held that "the

suppression by the prosecution of evidence favorable to an

accused upon request violates due process where the evidence

is material either to guilt or to punishment, irrespective of

3. Pursuant to Fed. R. Crim. P. 29, "The court on motion of
a defendant or of its own motion shall order the entry of
judgment of acquittal . . . if the evidence is insufficient
to sustain a conviction . . . ."

4. Jadusingh makes his ineffective assistance of counsel
claim in a supplemental brief he filed pro se.

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the good faith or bad faith of the prosecution." Id. at 87.

The purpose of the Brady rule is "to prohibit the prosecution

from intentionally withholding `evidence favorable to the

accused that, if suppressed, would deprive the defendant of a

fair trail.'" United States v. Valencia-Lucena, 925 F.2d

506, 514 (1st Cir. 1991)(quoting United States v. Bagley, 473

U.S. 667, 675 (1985)). The rule is not, however, intended to

"`displace the adversary system as the primary means by which

truth is uncovered.'" Id. (quoting Bagley, 473 U.S. at 675).

Here, there was no Brady violation. Although the

government did not disclose Carr's 1978 misdemeanor drug

conviction until just before the start of the first day of

trial, it is uncontested that the government did not actually

learn of this conviction until that same day.5 Moreover,

Carr's other past substance abuse and outstanding traffic

violations were fully disclosed during the direct and cross-

examination of Carr at trial. Given this full disclosure of

Carr's background by the government, we are at a loss to

comprehend defendant's argument that the government committed

a Brady violation.6 See id. at 514 (government failure to

5. We further note that defendants, although knowing about
the 1978 conviction, did not raise it at trial.

6. Jadusingh and Whitaker also cursorily argue that the
government knowingly allowed Carr to present false testimony
to the jury. See United States v. Wallach, 935 F.2d 445 (2d

Cir. 1991)(reversing conviction where government knowingly
allowed star witness to perjure himself). Having carefully
reviewed all of the alleged "inconsistencies" adduced in

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turn over evidence of confidential informant's drug use was

not Brady violation where issue was fully revealed at trial).

2. Cross Examination

Jadusingh next argues that the trial judge unfairly

limited the scope of his cross-examination of Carr. In

support of this argument, however, Jadusingh offers only the

following colloquy between his lawyer and Carr:

Q. After 1985 how many warrants for
your arrest did you have?

A. Five.

Q. You had five arrest warrants
pending, you never have stated that?

[Government]: Objection, Your Honor.

The Court: Sustained.

After the trial court sustained the government's objection,

Jadusingh's attorney neither attempted to reformulate his

query, nor asked the trial judge for a clarification of his

ruling. Instead, the attorney wholly abandoned this

particular line of questioning of Carr, and moved on to an

unrelated topic.

When challenging an exclusionary ruling like the

one before us, the aggrieved party must show 1) that a

substantial right was affected, and 2) that the "substance of

the evidence [sought to be introduced] was made known to the

court by offer or was apparent from the context within which

support of this argument, however, we find it to be baseless.

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questions were asked." Fed. R. Evid. 103 (a) (2). In the

absence of this minimal showing, our review is limited to

"plain error." Fed. R. Evid. 103(d). In order to show plain

error, the complaining party must demonstrate "that justice

has miscarried or that the trial's basic fairness has been

compromised." United States v. Hadfield, 918 F.2d 987, 995

(1st Cir. 1990), cert. denied, 111 S. Ct. 2062 (1991). We

find no such error here.

We begin by noting that the question posed by

Jadusingh's counsel at trial related solely to Carr's arrest

warrants after 1985. The only evidence in the record

regarding Carr's criminal history for this time period is her

testimony on direct examination that she had pending traffic

violations. Nothing in the record remotely intimates that

further cross-examination on this subject would have

uncovered evidence of other wrong-doing on the part of Carr

or would have been of any value to Jadusingh. Nor has

Jadusingh offered any information on appeal tending to show

that further cross-examination on this subject was warranted.

Further, it is not apparent from the record that

the district court intended to restrict Jadusingh's

substantive inquiry into Carr's outstanding warrants. It is

equally plausible that the government objected to the

argumentative tone of the question. Thus, we cannot say that

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the fairness of Jadusingh's trial was affected by the

district court's restriction of Jadusingh's cross-examination

of Carr.7

B. Admission of Tape Recording

Jadusingh and Whitaker next argue that it was error

for the court to permit the jury to listen to the audiotape

of the meeting between Carr, Jadusingh, Whitaker and Miller

at Jadusingh and Miller's apartment. In so doing, they

contend that the trial court should have excluded the tape

because it was inaudible. Jadusingh further argues that he

was prejudiced by the prosecutor's reference to the substance

of the tape in her closing remarks. We disagree.

1. Audibility and Admission of the Tape

The decision to admit or exclude an audiotape rests

with the trial judge, who must decide "whether `the inaudible

parts are so substantial as to make the rest [of the tape]

more misleading than helpful.'" United States v. Font-

7. Jadusingh also charges that the district court's ruling
violated his right to confront Carr in violation of the Sixth
Amendment. We fail to see the merit of this argument. A
criminal defendant's Sixth Amendment right to confront
witnesses against him/her is not absolute. It may, of
course, be violated when the defendant is prohibited from
engaging in cross-examination which is not repetitive,
harassing or otherwise improper, but, rather, is designed to
show a "prototypical form of bias on the part of the witness
and thereby to expose to the jury information on the
witness's reliability." United States v. Osorio, 929 F.2d

753, 759 (1st Cir. 1991). Here, the question posed by
Jadusingh's counsel was argumentative and, therefore,
properly excluded as improper cross-examination. See id. at

760.

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Ramirez, 944 F.2d 42, 47 (1st Cir. 1991) (quoting United

States v. Carbone, 798 F.2d 21, 24 (1st Cir. 1986)), cert.

denied, 112 S. Ct. 954 (1992). As we have held on numerous

occasions, a trial judge's ruling on the admission of

recordings is afforded "broad discretion," even where

portions of the taped conversation are unintelligible. See,

e.g., Font-Ramirez, 944 F.2d at 47.

We have listened to the tape and conclude that the

district court acted within its discretion in ruling that the

tape as a whole was not more misleading than helpful.

Although much of what Jadusingh and Whitaker say is drowned

out by intermittent television noise, Carr's words are easily

understandable as she repeatedly paraphrases statements made

by each defendant to his or her discernable approval.

Furthermore, Carr's audible questions regarding money, travel

arrangements and customs are addressed to, and answered by,

Jadusingh, thereby corroborating much of Carr's direct

testimony that Jadusingh was in control of the overall

venture. See id. We therefore affirm the district court's

admission of this tape.8

8. Jadusingh also argues that the tape should have been
excluded because the government neither provided a written
transcript nor established a chain of custody. As to the
first of these arguments, it is established that "a
transcript is not a prerequisite for the admission of
recorded conversations." United States v. Panzardi-Lespier,

918 F.2d 313, 319 (1st Cir. 1990). As to the second
argument, we agree with the Second Circuit that, once the
government has established both authenticity and accuracy,

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2. Prosecutorial Misconduct

Jadusingh argues that he was prejudiced by the

prosecutor's substantive reference to the audiotape in her

closing remarks. More specifically, Jadusingh objects to

references made by the prosecutor to the jury that statements

allegedly made by Jadusingh were audible and that the jury

would be able to hear Jadusingh "speaking about being

watchful for dogs that would be sniffing" at the airport.

Jadusingh, however, failed to object to this reference at

trial so, once again, we review for plain error. See

Hadfield, 918 F.2d at 995.

Even if we were to assume that the prosecutor's

reference to the tape was erroneous, the reference would not

constitute plain error. First of all, the trial court

provided the jury with a limiting instruction directing them

sufficient foundation has been laid for the tape's admission
without proof of chain-of-custody. See United States v.

Steinberg, 551 F.2d 510, 515 (2d Cir. 1977). We note that

the government, through Carr, properly authenticated the tape
and identified the voices. See Font-Ramirez, 944 F.2d at 47.

Whitaker argues that the court erred in allowing the
jury to listen to the tape because it was never formally
moved into evidence. Because Whitaker failed to raise this
objection below, we review this argument under a plainly
erroneous standard. See United States v. Brennan, 994 F.2d

918, 925 (1st Cir. 1993). We fail to see how the
government's failure to move the tape formally into evidence
affected the fundamental fairness of the trial where 1) the
government provided the proper foundation to admit the tape,
2) the trial court ruled that the government could play the
tape for the jury, and 3) the tape was docketed as Government
Exhibit 17. We therefore reject this argument.

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to disregard inaudible portions of the tape. Moreover, Carr

testified, independently of the tape, that Jadusingh had, in

fact, warned Carr, Whitaker and Miller of customs dogs.

Thus, the very evidence which Jadusingh now objects to had

been presented to the jury by an independent source.

Finally, an independent review persuades us that evidence of

the dog warnings forms a very small and inconsequential piece

of the overall evidence which supports Jadusingh's

conviction. Accordingly, we find no plain error in the

government's reference to Jadusingh's inaudible statements on

the tape.

C. Sufficiency of the Evidence of Conspiracy

Both Jadusingh and Whitaker argue that there was

insufficient evidence to support their convictions for

conspiring to import cocaine into the United States from

Aruba in violation of 21 U.S.C. 952 and 963,9 and

conspiring to possess with intent to distribute the same

9. 21 U.S.C. 952 provides in relevant part that it "shall
be unlawful to import into the customs territory of the
United States from any place outside thereof . . . [a]
controlled substance . . . ." Under 21 U.S.C. 963, any
person who conspires to commit the crime above, "shall be
subject to the same penalties as those prescribed for the
offense."

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cocaine in violation of 21 U.S.C. 841(a)(1) and 846.10

This argument need not detain us long.

When reviewing a sufficiency of the evidence

challenge, we examine the evidence in the light most

favorable to the government and affirm convictions where any

rational juror could have found guilt beyond a reasonable

doubt. See United States v. Vavlitis, No. 93-1229, slip op.

at 15 (1st Cir. Nov. 19, 1993). Conspiracy convictions

require proof that the defendants entered into an agreement

with one another to commit a crime. See United States v.

Concemi, 957 F.2d 942, 950 (1st Cir. 1992). We note that the

government may satisfy this burden by direct and/or

circumstantial evidence. Valencia-Lucena, 925 F.2d at 512.

Given that the admission of Carr's testimony and

the audiotape was not erroneous, Jadusingh's contention that

the government failed to produce evidence sufficient to

support his convictions is meritless. There is a plethora of

direct evidence in the record showing that Jadusingh 1)

planned the trip to import the cocaine, 2) recruited and

controlled Carr, Whitaker and Miller, and 3) provided the

travel money and the funds to purchase the cocaine.

10. 21 U.S.C. 841(a)(1) provides in relevant part that "it
shall be unlawful for any person knowingly or intentionally"
to "possess with intent to . . . distribute . . . a
controlled substance." Under 21 U.S.C. 846, any person who
conspires to commit the offense described above, "shall be
subject to the same penalties as those prescribed for the
offense."

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Moreover, DEA agents observed Jadusingh traveling to Puerto

Rico. They listened in on at least one telephone

conversation between Jadusingh and Carr while Carr, Whitaker

and Miller were in Curacao. And they also observed Jadusingh

attempting to purchase an airplane ticket, thereby

corroborating Carr's testimony that Jadusingh wanted to meet

the women in St. Thomas. Moreover, additional evidence shows

that Jadusingh promised to pay the women $1000 each for their

efforts and that the women were instructed to deliver cocaine

valued at over three hundred thousand dollars ($300,000)

wholesale to Jadusingh. Thus, the evidence produced by the

government supports a reasonable inference that Jadusingh 1)

agreed with Whitaker and Miller to commit the charged

offenses; 2) had constructive possession of cocaine; 3)

intended to distribute the cocaine, see United States v.

Vargas, 945 F.2d 426, 428-29 (1st Cir. 1991) (holding that

one kilogram of cocaine was "large enough to support a fair

jury inference that it was not intended merely for personal

consumption"), and 4) controlled those who actually imported

the cocaine into the United States from Aruba.

Whitaker's sufficiency argument is based mainly on

her claim that the Customs Inspector who searched her at the

Marin Airport in San Juan could not identify her at

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trial.11 We fail to discern any merit in this argument.

Whitaker was identified in court by Carr as one of the

coconspirators who planned the trip, handled the money,

divided up the cocaine, and attempted to smuggle the drug

into the United States from Aruba. Whitaker also was

identified in court by DEA agent Johnson, who received

custody of Whitaker from Maldonado at the airport, as one of

two women who were apprehended deplaning a flight from Aruba

with cocaine strapped to their stomachs. In light of the

abundance of evidence supporting the convictions of both

Jadusingh and Whitaker, we decline the invitation to upset

the jury's findings of their respective guilt as to either

count.

D. Sentencing Enhancements

Jadusingh contends that the evidence presented was

insufficient to uphold the trial court's two-level sentencing

enhancement for his organizational role in the

conspiracy.12 Again, we disagree.

11. Whitaker also argues at length that Carr was untruthful.
On appeal, it is not within our purview to assess the
credibility of trial witnesses. See Valencia-Lucena, 925

F.2d at 512.

12. Under U.S.S.G. 3B1.1, a sentencing judge may increase
a base offense level by two if the crime involved two or more
people and the defendant "was an organizer, leader, manager,
or supervisor" of the criminal activity. Factors to be
considered include "the exercise of decision making
authority, the nature of participation in the commission of
the offense, the recruitment of accomplices, the claimed
right to a larger share of the fruits of the crime, the

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An enhancement under U.S.S.G. 3B1.1 is

appropriate if the government has demonstrated that the

defendant "`exercised some degree of control over others

involved in the commission of the crime.'" United States v.

De La Cruz, 996 F.2d 1307, 1315 (1st Cir.)(quoting United

States v. Fuller, 897 F.2d 1217 (1st Cir. 1990)), cert.

denied, 114 S. Ct. 356 (1993). We review role-in-the-offense

rulings for clear error. United States v. Cronin, 990 F.2d

663, 665 (1st Cir. 1993).

Here, the sentencing judge based his decision to

enhance Jadusingh's sentence upon a reading of the pre-

sentence report, and his notes from, and memory of, the

trial. The district judge was afforded ample opportunity to

ascertain the credibility of Donna Carr as she testified to

Jadusingh's control over the drug operation. The record is

replete with testimony from Carr that Jadusingh planned and

financed the trips to Puerto Rico and Curacao. According to

Carr, Jadusingh directed the women's actions. He showed them

1) how to divide up and package the cocaine, 2) how to strap

it to their bodies, and 3) how to avoid detection at customs.

Jadusingh also provided the money to pay for the trip and the

drugs. This evidence clearly supports a finding that

degree of participation in planning or organizing the
offense, the nature and scope of the illegal activity, and
the degree of control and authority exercised over others."
U.S.S.G. 3B1.1, comment. (n.3).

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Jadusingh was the "mastermind behind this offense."

Accordingly, we find no clear error in the trial judge's two-

level enhancement of Jadusingh's sentence.

E. Ineffective Assistance of Counsel

In his supplemental pro se brief, Jadusingh urges

this court to consider his claim of ineffective assistance of

counsel. Generally, we will not address such a claim raised

for the first time on direct appeal unless "the critical

facts are not in dispute and a sufficiently developed record

exists." United States v. Daniels, 3 F.3d 25, 26-27 (1st

Cir. 1993). The proper forum for factbound issues of

ineffective assistance of counsel is in a collateral

proceeding under 28 U.S.C. 2255. Id. at 27.

The record does not reflect that this issue was

raised below. Furthermore, the laundry list of counsel's

alleged failures, including the failure to call witnesses, to

voir dire the jury, to request a severance and to strike

apparent contradictory statements of the government's

confidential informant, are sufficiently factbound to

preclude our review on the record before us. See id.

Accordingly, we decline the invitation to review this claim.

III.

CONCLUSION

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The judgment below is affirmed, without prejudice

to defendant Jadusingh's right to pursue his ineffective

assistance of counsel claim in a collateral proceeding under

28 U.S.C. 2255.

Affirmed.

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