United States Court of Appeals,
Eleventh Circuit.
No. 95-4243
Non-Argument Calendar.
UNITED STATES of America, Plaintiff-Appellee,
v.
Jorge Eliecer BUENO-SIERRA; Carlos Enrique Sanchez; Wilmer
Marin-Garcia, Defendants-Appellants.
Nov. 12, 1996.
Appeals from the United States District Court for the Southern
District of Florida. (No. 93-567-CR-DTKH), Daniel T.K. Hurley,
Judge.
Before HATCHETT, Chief Judge, TJOFLAT and KRAVITCH, Circuit Judges.
PER CURIAM:
Jorge Bueno-Sierra, Carlos Sanchez, and Wilmer Marin-Garcia
raise a host of challenges to their convictions on numerous
drug-related offenses.1 We AFFIRM.
I. FACTS
In September, 1993, the U.S. Customs Service targeted Bueno-
Sierra as a potential drug figure. Reliader Heredia, a government
informant cooperating with officials as part of a plea bargain in
another case, met Bueno-Sierra and, from his demeanor, surmised
that he was in the drug trade.
At the direction of the Customs Service, Heredia arranged a
1
The government charged appellants with four counts:
conspiracy to import cocaine, 21 U.S.C. § 963; conspiracy to
possess cocaine with the intent to distribute, 21 U.S.C. § 846;
importation of cocaine, 21 U.S.C. §§ 952(a), 960(a)(1), (b); and
possession of cocaine with intent to distribute, 21 U.S.C. §
841(a)(1). A jury found Bueno-Sierra and Sanchez guilty on all
counts, and found Marin-Garcia on all counts except the
possession charge.
"formal introduction" with Bueno-Sierra. Heredia suggested that he
was a drug dealer interested in bringing cocaine to the United
States and Bueno-Sierra sought Heredia's help in smuggling Bueno-
Sierra's cocaine from Columbia. Heredia also met Marin-Garcia, who
was to arrange the Columbian end of the deal. Marin-Garcia would
tell Heredia where to locate the drug shipment. Heredia would then
offload the drugs, supposedly with the help of Heredia's contacts
among the authorities at the Port of Miami.
The conspirators held several subsequent meetings, ordinarily
attended by Heredia, Sanchez, and Bueno-Sierra and his wife, Marta
Rojas.2 Heredia wore a transmitter to record many of these
meetings. Bueno-Sierra and Marin-Garcia informed the conspirators
that the drugs would be transported aboard the vessel Lontue and
described precisely the location and appearance of both the
container and the boxes within the container.
On November 20, Customs opened the identified container from
the Lontue and recovered sixteen boxes of cocaine. Four days
later, Bueno-Sierra and Sanchez waited for word from Heredia while
Heredia took possession of the drugs from Customs. Sanchez and
Bueno-Sierra, together with Hernan Diego Garcia,3 then met Heredia
4
and took the drugs to Higinio Cueli's house and unloaded and
repackaged the cocaine. Sanchez and Bueno-Sierra were arrested as
2
Rojas was charged along with appellants, but remains at
large.
3
Garcia pled guilty in this case. He is not a party to the
instant appeal.
4
Bueno-Sierra promised to pay Cueli as much as $10,000 for
the use of his home for an hour. Cueli later pled guilty in this
case and testified against his compatriots.
they left and Marin-Garcia was arrested subsequently. Customs
seized the drugs at Cueli's home.
II. ISSUES ON APPEAL
Appellants allege the following: (1) that the trial court
erred in a number of evidentiary rulings; (2) that the trial court
improperly overruled defense objections to the composition of the
jury; (3) that Bueno-Sierra was denied effective assistance of
counsel; (4) that the government's delayed disclosure of certain
evidence and failure to correct certain erroneous testimony
prejudiced the defense; (5) that the prosecutor made improper
comments during closing argument justifying reversal; and (6) that
appellants' role in the crimes do not justify the sentences
imposed.5
A. Admissibility of Berth Request Form
As evidence that appellants actually imported cocaine into
the United States from a place outside the country, see 21 U.S.C.
§ 952(a), the government introduced the Lontue's berth request
form, a document that assigns incoming vessels dock space and notes
arrivals and departures of particular ships. The form was prepared
by the Lontue's shipping company, yet it was introduced through
John Perez, the Assistant Chief of Port Operations for Miami, whose
office maintains such forms on file.
At trial, the defense objected to the use of the berth request
as hearsay outside the scope of the business records exception.
5
We hold that appellants' evidentiary claims other than
those discussed in section III.A., infra, lack merit. Similarly,
we find appellants' jury selection, assistance of counsel, and
prosecutorial misconduct claims meritless and need no further
discussion. See 11th Cir.R. 36-1.
See Fed.R.Evid. 803(6).6 Appellants press this issue here,
alleging that because the shipping companies produced the form and
the Port of Miami only kept it on file without any independent
verification of its truth, the business records exception to the
hearsay rule is inapposite. They contend that because the
custodian of the records had no knowledge of who prepared them, the
requirements of Rule 803(6) are not satisfied.7 We disagree.
The touchstone of admissibility under the business records
exception to the hearsay rule is reliability, and a trial judge has
broad discretion to determine the admissibility of such evidence.
United States v. Veytia-Bravo, 603 F.2d 1187, 1189 (5th Cir.1979),
cert. denied, 444 U.S. 1024, 100 S.Ct. 686, 62 L.Ed.2d 658 (1980).8
This court has held that the proponent of a document ordinarily
6
The trial court admitted the document pursuant to this
court's decision in Baxter Healthcare Corp. v. Healthdyne, Inc.,
944 F.2d 1573 (11th Cir.1991). In that case, we held that
records of the kind at issue in the instant case were admissible
under Rule 803(6), but we later vacated the opinion when the
parties withdrew their appeal. Baxter Healthcare Corp. v.
Healthdyne, Inc., 956 F.2d 226 (11th Cir.1992).
7
Rule 803(6) provides an exception for:
A memorandum, report, record, or data compilation, in
any form, of acts, events, conditions, opinions, or
diagnoses, made at or near the time by, or from
information transmitted by, a person with knowledge, if
kept in the course of a regularly conducted business
activity, and if it was the regular practice of that
business activity to make the memorandum, report,
record, or data compilation, all as shown by the
custodian or other qualified witness, unless the source
of information or circumstances of preparation indicate
lack of trustworthiness. Fed.R.Evid. 803(6).
8
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir.1981) (en banc), this court adopted as binding precedent all
decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
need not be the entity whose first-hand knowledge was the basis of
the facts sought to be proved. United States v. Atchley, 699 F.2d
1055, 1059 (11th Cir.1983).9 To satisfy Rule 803(6), however, the
proponent must establish that it was the business practice of the
recording entity to obtain such information from persons with
personal knowledge and the business practice of the proponent to
maintain the records produced by the recording entity.10 See Munoz
v. Strahm Farms, Inc., 69 F.3d 501, 503 (Fed.Cir.1995); Saks
Int'l, Inc. v. M/V "Export Champion", 817 F.2d 1011, 1013 (2d
Cir.1987).
Here, the government offered testimony sufficient to satisfy
the requirements for admissibility. Perez testified that berth
requests are maintained regularly in the Port's operations office,
and that ships' agents regularly submit such documents as a
prerequisite to obtaining a docking location. Perez further stated
that the ships' agents personally prepare the berth requests.
Applying the rule set out above, we conclude that the berth request
was properly admitted at trial.11
9
In Atchley, we held that telephone records made and
preserved in the regular course of business were properly
admitted without personal knowledge of the identity of the
preparer.
10
We note that Rule 803(6) does not eliminate double hearsay
problems. Rather, it commands that each link in the chain of
possession must satisfy the requirements of the business records
exception or some other exception to the hearsay rule. See 4
Weinstein's Evidence, 803(6)[04], at 803-210 to 803-212 (Jack B.
Weinstein et al. eds., 1996).
11
The Second Circuit has ruled the same way on parallel
facts. Saks Int'l Inc. v. M/V "Export Champion", 817 F.2d 1011,
1013 (2d Cir.1987) (where ship was loaded in Africa, persons
loading ship prepared a loading report, and report was maintained
by the ship's mate in the regular course of business, Rule 803(6)
B. Government Disclosures
Appellants next allege that the government's delayed
disclosure of certain materials and failure to correct certain
trial testimony necessitates reversal. Although we do not condone
the prosecutor's actions, the trial court's actions in the instant
case cured any alleged violation of the prosecutor's disclosure
duties.
1. Delayed Disclosure
The most significant of appellants' claims stems from the
fact that significant impeachment testimony against government
witness Heredia was not disclosed until trial had begun, and that
the berth request form was not disclosed until it was sought to be
introduced.12 On the seventh day of trial, the prosecution turned
over to the defense a number of documents which contained
information seriously inconsistent with Heredia's trial testimony.
Appellants allege that this overdue disclosure was improper, in
light of the prosecutor's disclosure duties under Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
Brady requires the government to produce for the defense
impeachment evidence against government witnesses. Giglio v.
United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972);
United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d
permitted the report to be introduced through the ship's mate).
12
Appellants also claim that tapes and transcripts should
have been turned over earlier and that impeachment evidence
against witness Cueli was withheld. We find that, absent
evidence of prejudice to appellants, the fact that the tapes and
transcripts were available a week before trial does not warrant
reversal. Further, the government did turn over the information
sought regarding Cueli far in advance of trial.
481 (1985). Delayed disclosure may be grounds for reversal, "but
only if the defendant can show prejudice, e.g., the material came
so late that it could not be effectively used." United States v.
Beale, 921 F.2d 1412, 1426 (11th Cir.), cert. denied, 502 U.S. 829,
112 S.Ct. 100, 116 L.Ed.2d 71 (1991). In this case, however, such
prejudice was averted because the trial court recessed for the
remainder of the day and allowed additional cross-examination of
Heredia the next morning. Appellants' attorneys fully explored the
extent of Heredia's prior inconsistent testimony at that time. We
hold that, as a result of the trial court's remedial measures,
appellants were not prejudiced by the late disclosure.
Second, appellants claim that the late disclosure of the
berth request was a violation of both Federal Rule of Criminal
Procedure 16 and the court's standing discovery order. Assuming a
violation,13 we hold that no reversible error occurred because
appellants have shown no prejudice from the delay.
Late disclosure of evidence required to be turned over under
Rule 16 or a standing discovery order necessitates reversal only if
it violates a defendant's substantial rights. United States v.
Camargo-Vergara, 57 F.3d 993, 998 (11th Cir.1995). Substantial
prejudice results if a defendant is unduly surprised and lacks an
adequate opportunity to prepare a defense. Id. Here, the
defendants suffered no such prejudice because there was significant
13
The standing discovery order and the Rules contain
substantially similar language, requiring the prosecution to turn
over "documents ... which are within the possession, custody or
control of the government, and which are ... intended for use by
the government as evidence in chief at the trial...."
Fed.R.Crim.P. 16(a)(1)(C).
other evidence introduced at trial substantiating the government's
contention that appellants imported cocaine from Columbia to the
Port of Miami aboard the ship Lontue. Accordingly, their ability
to defend against the importation charge was not compromised by the
admission of the berth request. See United States v. Accetturo,
966 F.2d 631, 636 (11th Cir.1992), cert. denied, 506 U.S. 1082, 113
S.Ct. 1053, 122 L.Ed.2d 360 (1993).
2. Failure to Correct Testimony
Appellants claim that Heredia made several false statements
in the course of his testimony that the government failed to
correct. They correctly cite Napue v. Illinois, 360 U.S. 264, 79
S.Ct. 1173, 3 L.Ed.2d 1217 (1959), for the proposition that the
prosecutor must correct known falsehoods. Although the record is
unclear regarding whether the government indeed violated Napue,14
we hold that reversal is inappropriate on these facts. Reversible
error occurs only if a failure to correct results in material
prejudice such that there is any reasonable likelihood that the
false testimony would affect the jury's judgment. United States v.
Alzate, 47 F.3d 1103, 1110 (11th Cir.1995). Defense counsel fully
explored every inconsistency alleged by the appellants when the
trial judge re-opened cross-examination. We hold, therefore, that
the jury's judgment would not have been affected.
C. Sentencing Adjustments for Role in Offense
Each appellant challenges his Sentencing Guidelines range, on
14
A government witness testified that Heredia told him that
he made over $4 million in the drug trade, but Heredia testified
to $2 million. The record does not demonstrate conclusively
whether the prosecutor was aware of this or any other
inconsistencies.
the ground that he had a lesser role in the conspiracy than found
by the court. We review a trial court's factual determinations
relative to sentencing for clear error. United States v. Asseff,
917 F.2d 502, 507 (11th Cir.1990).
Bueno-Sierra received a four-level enhancement in his
sentence range as an organizer or leader of the conspiracy. See
United States Sentencing Commission, Guidelines Manual, § 3B1.1(a)
(Nov. 1995) [hereinafter Guidelines ]. Based on a review of the
record and noting Bueno-Sierra's extensive role in coordinating
every aspect of this transaction, we hold that the trial court's
decision was not clearly erroneous.
Sanchez argues that he is entitled to a reduction for being
a minor or minimal participant, but his conduct belies this claim.
He participated in most of the meetings regarding the scheme and
transported and unloaded the cocaine once it arrived in the United
States. We therefore conclude that the sentencing determination
has ample support in the record and is not clearly erroneous.
Finally, Marin-Garcia claims error in his enhancement for
being an organizer, manager, or supervisor. See Guidelines §
3B1.1(c). The record evidence demonstrates, however, that Marin-
Garcia coordinated the entire Columbian end of this conspiracy,
informed the parties of the location of the cocaine aboard the
ship, and provided replacement container seals to divert
authorities' suspicion, among other things. Thus, the trial court
did not clearly err in Marin-Garcia's sentence.
III. CONCLUSION
For the foregoing reasons, appellants' convictions and
sentences are AFFIRMED.