United States v. Nunez ( 2005 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 04-4484
JENNY NUNEZ,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 04-4504
CARLOS ALBERTO NUNEZ,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CR-03-161)
Argued: September 22, 2005
Decided: December 21, 2005
Before TRAXLER and GREGORY, Circuit Judges, and
R. Bryan HARWELL, United States District Judge for the
District of South Carolina, sitting by designation.
Vacated and remanded by published opinion. Judge Traxler wrote the
opinion, in which Judge Gregory and Judge Harwell joined.
2 UNITED STATES v. NUNEZ
COUNSEL
ARGUED: Meghan Suzanne Skelton, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellants. Sara Elizabeth Flannery, Assis-
tant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Frank
W. Dunham, Jr., Federal Public Defender, Alexandria, Virginia, Mary
E. Maguire, Assistant Federal Public Defender, Carolyn V. Grady,
Assistant Federal Public Defender, Richmond, Virginia, for Appel-
lants. Paul J. McNulty, United States Attorney, Michael J. Elston,
Assistant United States Attorney, Alexandria, Virginia, for Appellee.
OPINION
TRAXLER, Circuit Judge:
Appellants Jenny Nunez and Carlos Nunez challenge their convic-
tions and sentences for conspiracy to possess with intent to distribute
and distribution of cocaine and heroin, in violation of 21 U.S.C.A.
§ 846 (West 1999); possession with intent to distribute and distribu-
tion of cocaine and heroin, in violation of 21 U.S.C.A. § 841(a)(1)
(West 1999) and 18 U.S.C.A. § 2 (West 2000); and attempted posses-
sion with intent to distribute cocaine and heroin, in violation of 21
U.S.C.A. § 846 and 18 U.S.C.A. § 2. We vacate and remand for
retrial.
I.
The evidence at trial, viewed in the light most favorable to the gov-
ernment, see United States v. Burgos, 94 F.3d 849, 854 (4th Cir.
1996) (en banc), reveals the following facts.
In October 2000, the Drug Enforcement Agency ("DEA") in
Miami, Florida, received a tip that Hymie Acosta was smuggling
cocaine and heroin from Colombia, South America, into the United
States on food carts of airplanes landing at Miami International Air-
port and that Martha Gray was distributing the drugs for Acosta in the
UNITED STATES v. NUNEZ 3
Miami area. During surveillance, Gray and Acosta were observed at
the home of Carlos and Jenny Nunez, who were married and living
in the Miami area. Following standard operating procedures, the
Miami DEA entered the Nunezes into the DEA indexing computer
program.
Martha Gray was arrested in April 2001, following the seizure of
a shipment of drugs from a flight that landed in Miami. She agreed
to cooperate with authorities in May 2003. Gray testified she had
approached Acosta for a job after she was laid off by American Air-
lines and began to collect and deliver money for him. She later
became involved with the drug smuggling operation as well. Acosta
would notify Gray of the flight carrying the smuggled drugs and the
expected amount, and Gray would contact Adnan Shwani and Willie
Floyd, their contacts at the airport. Floyd unloaded the drugs from the
food carts and delivered them to Shwani, who delivered the drugs to
Gray. Gray distributed the drugs pursuant to Acosta’s instructions and
collected money. Gray testified that she delivered drugs to Jenny and
Carlos Nunez for Acosta.
DEA agents in Washington, D.C., began investigating drug traf-
ficking activities of Kerry Bond and his associates, including Regi-
nald Robinson, in the Washington area in the year 2000. This
investigation led to the arrest of several individuals who, in the course
of cooperating with authorities, identified Guillermo "Willie"
Padrone, from Miami, Florida, as their drug source.
Padrone was arrested in 2002 and also began to cooperate with
authorities. He identified Carlos Nunez as his supplier for powder
cocaine and heroin. Padrone testified that, following a short hiatus
from his former drug-dealing activities, he began dealing drugs in the
fall of 2000 and reconnected with Carlos Nunez as his supplier.1 He
and other witnesses testified regarding the involvement of Carlos and
Jenny Nunez in the distribution scheme. When the Washington DEA
agents indexed the Nunez name in the course of their investigation,
1
Padrone testified that, for a short period of time in 1999, he had
obtained powder cocaine from Carlos Nunez in Miami and distributed it
to Robinson and Bond, both of whom lived and distributed the drugs in
the Washington, D.C. area.
4 UNITED STATES v. NUNEZ
also via standard procedure, the name surfaced as having been previ-
ously indexed by the Miami DEA. This led to a cooperative investiga-
tion.
On August 12, 2003, Carlos and Jenny Nunez were arrested in
Miami on a federal arrest warrant issued from the Eastern District of
Virginia. Jenny, who speaks Spanish, was advised of her Miranda
rights in her native language and agreed to submit to questioning by
DEA agents Mary Toomey and Oscar Negron. Agent Toomey speaks
English, but Agent Negron’s native language is Spanish. Thus, Agent
Negron translated Agent Toomey’s questions and Jenny’s answers
during the questioning. On August 14, 2003, Agent Toomey prepared
a written Report of Investigation, (the "Report") from notes taken by
her from Agent Negron’s translation. The Report implicates Carlos
and Jenny Nunez, along with other coconspirators, in the Colombia-
to-Washington drug distribution conspiracy.
Carlos thereafter filed a motion to sever his trial from Jenny’s trial,
arguing that her statement could not be redacted in a way that the
jurors would not know that it implicated him and, therefore, that it
would run afoul of his Sixth Amendment rights. Jenny filed a motion
to suppress introduction of her statement, arguing that it was not vol-
untarily given. The court denied both motions and ruled that the intro-
duction of a redacted statement would sufficiently protect Carlos.
The government prepared a redacted statement and subpoenaed
Agent Toomey from Florida to introduce it at trial. On the first day
of trial, however, the Supreme Court issued its opinion in Crawford
v. Washington, 541 U.S. 36 (2004), which held that the introduction
of out-of-court testimonial statements is barred by the Confrontation
Clause unless the witness is unavailable and the defendants had a
prior opportunity to cross-examine the witness.2 See id. at 68. The fol-
lowing day, the appellants moved to bar Agent Toomey from offering
the Report into evidence because it was not a first-hand account of
2
Crawford overruled Ohio v. Roberts, 448 U.S. 56, 66 (1980) (internal
quotation marks omitted), under which an unavailable witness’s state-
ment could be admitted if it bore "adequate indicia of reliability," mean-
ing that it fell "within a firmly rooted hearsay exception" or bore
"particularized guarantees of trustworthiness."
UNITED STATES v. NUNEZ 5
Jenny’s statements. In light of Crawford, the district court reversed its
earlier ruling, holding that only Agent Negron could testify as a fact
witness regarding Jenny’s statements during the interview. The state-
ment prepared in English by Agent Toomey from her notes of the
translation was a hearsay statement which would run afoul of the
Confrontation Clause. Thus, Agent Negron offered testimony regard-
ing Jenny’s statements, but the Report was not admitted.
After jury deliberations had begun in the trial, the jury sent a note
to the court advising it was unable to locate the Report of Jenny’s
interview. Although the Report had not been introduced into evi-
dence, it had been referred to during the testimony of Agent Negron
and Jenny Nunez. Upon prompting by the district court, the govern-
ment then moved to reopen the evidence to allow belated admission
of the previously-excluded Report. Because "[e]xtensive use of [the
Report] was made throughout the examination," the district court
noted that it "would have let it go to the jury had [the government]
requested." J.A. 951-52. Accordingly, the district court ruled that it
would "re-open the evidence and let it in." J.A. 952. The Report sum-
marizing the interview of Jenny was then submitted to the jury in its
original unredacted form without affording either Jenny or Carlos an
opportunity to present additional testimony or argument. Both appel-
lants objected to the belated admission of this evidence and moved for
a mistrial, which was denied.
The jury thereafter returned a verdict convicting Carlos and Jenny
of conspiracy to possess with intent to distribute and distribution of
cocaine and heroin, possession with intent to distribute and distribu-
tion of cocaine and heroin, and attempted possession with intent to
distribute cocaine and heroin. Carlos and Jenny moved for a new trial,
arguing that the district court improperly reopened the evidence to
admit the Report. The motions were denied. Carlos was sentenced to
188 months imprisonment, and Jenny was sentenced to 151 months
imprisonment. This appeal followed.
II.
We first address the appellants’ contention that the district court
abused its discretion when it failed to give their requested jury
instruction regarding multiple conspiracies. The Nunezes contend that
6 UNITED STATES v. NUNEZ
the evidence demonstrated the existence of two distinct distribution
conspiracies, one in the Miami area (involving Acosta, Gray, Shwani,
and Floyd), and a separate one in the Washington area (involving
Padrone, Bond, and Robinson), and that they were therefore entitled
to a multiple conspiracy instruction. We disagree.
"A multiple conspiracy instruction is not required unless the proof
at trial demonstrates that appellants were involved only in [a] separate
conspirac[y] unrelated to the overall conspiracy charged in the indict-
ment." United States v. Squillacote, 221 F.3d 542, 574 (4th Cir. 2000)
(citations and internal quotation marks omitted). The focus of a con-
spiracy is the single-mindedness to achieve a particular goal. Gener-
ally, "[a] single conspiracy exists where there is one overall
agreement, or one general business venture. Whether there is a single
conspiracy or multiple conspiracies depends upon the overlap of key
actors, methods, and goals." Id. (citation and internal quotation marks
omitted). However, "one may be a member of a conspiracy without
knowing its full scope, or all its members, and without taking part in
the full range of its activities or over the whole period of its exis-
tence." United States v. Banks, 10 F.3d 1044, 1054 (4th Cir. 1993).
Also, it is not necessary that the conspiracy "have a discrete, identifi-
able organizational structure." Id. Often, the single conspiracy is com-
prised of a "loosely-knit association of members linked only by their
mutual interest in sustaining the overall enterprise of catering to the
ultimate demands of a particular drug consumption market." Id.Here, the evidence was more than sufficient to justify the district
court’s determination that a single conspiracy was at work. According
to the evidence presented by the government, Acosta arranged for the
drugs to be smuggled into the United States on airliners arriving in
Miami from Colombia and notified Gray of the specifics of the ship-
ment. Shwani and Floyd transferred the drugs from the airliners to
Gray, and Gray transported the drugs to the Nunezes in Miami. The
Nunezes, in turn, operated as a conduit to Padrone, who arranged for
transportation and distribution of the drugs to Bond and Robinson for
ultimate distribution in the Washington area. Coconspirators in both
locales described the unique way the drugs were packaged, which
remained unchanged from the time they were smuggled into the coun-
try until their delivery in the Washington area. Telephone records
confirmed contact between Padrone and Carlos and between Carlos
UNITED STATES v. NUNEZ 7
and Acosta. And, there was ample evidence that the drugs were
fronted all along the distribution chain.
In sum, far from demonstrating the existence of two separate and
distinct conspiracies, the evidence revealed that the Nunezes were
intimately connected with the conspirators in both locales and,
indeed, were the common bond between them. If accepted and
believed by the jury, the evidence indicated that the conspirators in
Miami and in the Washington area shared the common goal and
mutual interest to obtain heroin and cocaine from Colombia and dis-
tribute it for profit in the Washington area. Accordingly, the district
court did not abuse its discretion in failing to give the requested multi-
ple conspiracy instruction.
III.
We next address the Appellants’ contention that their convictions
should be vacated because the district court improperly reopened the
evidence after jury deliberations had begun and admitted the Report
summarizing Jenny’s alleged confession.
A.
A district court’s decision to reopen a case to admit additional evi-
dence is normally "within [its] sole discretion." United States v.
Abbas, 74 F.3d 506, 510 (4th Cir. 1996). In exercising this discretion,
however, the district court is directed to consider several factors:
[T]he court must consider the timeliness of the motion, the
character of the testimony, and the effect of granting the
motion. The party moving to reopen should provide a rea-
sonable explanation for failure to present the evidence in its
case-in-chief. The evidence proffered should be relevant,
admissible, technically adequate, and helpful to the jury in
ascertaining the guilt or innocence of the accused. The
belated receipt of such testimony should not imbue the evi-
dence with distorted importance, prejudice the opposing
party’s case, or preclude an adversary from having an ade-
quate opportunity to meet the additional evidence offered.
8 UNITED STATES v. NUNEZ
United States v. Peay, 972 F.2d 71, 73 (4th Cir. 1992) (citation and
internal quotation marks omitted) (emphasis added); see also Abbas,
74 F.3d at 510-11 (noting that courts should examine "(1) whether the
party moving to reopen provided a reasonable explanation for failing
to present the evidence in its case-in-chief; (2) whether the evidence
was relevant, admissible, or helpful to the jury; and (3) whether
reopening the case would have infused the evidence with distorted
importance, prejudiced the opposing party’s case, or precluded the
opposing party from meeting the evidence."). A district court’s refusal
to grant a new trial is also reviewed for an abuse of discretion. See
United States v. Singh, 54 F.3d 1182, 1190 (4th Cir. 1995).
B.
With these principles in mind, we review the circumstances sur-
rounding the disputed evidence and its ultimate admission as substan-
tive evidence for the jury’s consideration.
1.
During the government’s case, Agent Toomey and Agent Negron
testified. Agent Toomey, however, was not questioned regarding the
Report because it had been excluded from evidence. Because the
Report was prepared from the translation provided by Agent Negron,
and not from Jenny’s direct statements to the preparer of the Report,
the court had ruled that the Report was hearsay precluded under the
Confrontation Clause and that only Agent Negron could testify as to
Jenny’s statements. Consistent with the district court’s ruling, Agent
Negron testified and provided a short account of the interview process
and a summary of the statements made by Jenny to him concerning
the drug activities of the conspirators. However, Negron made no
mention of Carlos’s involvement in the alleged drug distribution
scheme during his testimony; in fact, the testimony appeared to have
been carefully presented so as to avoid any reference to Carlos by
name. Agent Toomey was recalled by the appellants after the govern-
ment rested, but again she was not questioned regarding the specifics
of the interview of Jenny, Agent Negron’s translation of Jenny’s
statements to Agent Toomey, or Agent Toomey’s preparation of the
Report.
UNITED STATES v. NUNEZ 9
Carlos and Jenny both testified and categorically denied any
involvement in the alleged drug distribution activities. Carlos had not
been implicated during Agent Negron’s testimony and the Report was
still not in evidence. Consequently, there was no discussion of the
Report during his examination. Jenny was cross-examined by the gov-
ernment regarding the statements Agent Negron had attributed to her
during his examination and, in doing so, the government referred to
some of the information contained in the Report. However, Jenny
denied making the alleged incriminating statements referenced by the
government. The government made no attempt to introduce the
Report at that time and did not seek to recall Agents Negron and
Toomey to introduce the Report as substantive evidence for the jury’s
consideration.
In contrast to the excerpts of information discussed during the gov-
ernment’s examination of Agent Negron and referred to in the cross-
examination of Jenny, the actual Report prepared by Agent Toomey
is a typed, five-page summary of alleged statements made by Jenny
during the interview. It consists of a short "Synopsis," followed by
nine single-spaced paragraphs of "details" of the conspiracy. In addi-
tion to memorializing Jenny’s activities, the Report contains her
detailed account of the activities of Acosta, Acosta’s contacts in
Colombia, Gray, Padrone, as well as those of her co-defendant and
husband Carlos, who is mentioned in the Report by name. It sets forth
the manner in which the conspiracy developed, as well as the specif-
ics of how the drugs were transferred from Gray to Carlos, then to
Padrone, and on to the Washington area, and how the money was
returned and divided. Even a cursory comparison of the testimony
presented and the Report reveals a stark contrast between the informa-
tion provided by the testimony and the detail contained within the
Report. In essence, the Report presents a concise, well-written, clos-
ing argument on the conspiracy count, and many of the individual
counts, and was quite incriminating to both Jenny and Carlos.
Prior to the close of the evidence and the summation, the jury had
been made aware that the Report existed. The Report had been used
to refresh Agent Negron’s recollection during his direct examination
by the government and, no doubt, the jurors were aware that the gov-
ernment had the Report in hand. Perhaps the government even read
directly from it during its cross-examination of Jenny. However, the
10 UNITED STATES v. NUNEZ
Report was not in evidence, nor had its detailed contents ever been
presented in their entirety as substantive evidence against Jenny or
Carlos.
2.
Under the circumstances, we are constrained to hold that the dis-
trict court abused its discretion in permitting the Government to
reopen its case to present the written, unredacted Report in its entirety
after summation was closed and the jury had begun deliberations.
First, the government has presented no "reasonable explanation"
for its failure to timely seek introduction of the Report as substantive
evidence during the trial, stating only that it made no effort to intro-
duce the Report as evidence during the appellants’ case or on rebuttal
given that the district court had already ruled it inadmissible.
Second, as we explain below, even if relevant and helpful to the
jury in ascertaining the guilt or innocence of the Nunezes, the evi-
dence was not "admissible" or "technically adequate" when presented.
Peay, 972 F.2d at 73.
The appellants contend that admission of the Report violated their
Sixth Amendment rights to confrontation because neither were
afforded an opportunity to cross-examine Agent Toomey or Agent
Negron about the Report. See Crawford, 541 U.S. at 68. In addition,
Carlos argues that the admission of the statement violated his rights
under the Confrontation Clause because the unredacted statement
contained Jenny’s references to Carlos’s participation in the drug con-
spiracy. See Bruton v. United States, 391 U.S. 123, 135-36 (1968).
In response, the government argues that, once Jenny testified, the
prior statement became admissible under Rule 613(b) of the Federal
Rules of Evidence. See id. ("Extrinsic evidence of a prior inconsistent
statement by a witness is not admissible unless the witness is afforded
an opportunity to explain or deny the same and the opposite party is
afforded an opportunity to interrogate the witness thereon, or the
interests of justice otherwise require."). The government argues that
Bruton does not apply because, once Jenny testified, Carlos had the
UNITED STATES v. NUNEZ 11
opportunity to cross-examine her and her statements relating to Car-
los’s role in the conspiracy became admissible. Thus, the government
argues that, had it moved to introduce the statement after Jenny was
cross-examined, Jenny’s statement, including its implications of Car-
los in the conspiracy, would have been admissible as extrinsic evi-
dence in rebuttal.
Assuming that the government is correct regarding the propriety of
introducing the Report in rebuttal, however, that fact does not cure the
problem at hand. At best, the Report would only have been admissible
at that point if it had been properly introduced through the agents.
Jenny and Carlos would have been afforded an opportunity to cross-
examine the agents on the Report and to meet the very incriminating
nature of the Report with additional evidence and cross-examination
on their part. And, at a minimum, Jenny and Carlos would have had
the ability to address the Report and argue its relevance and weight
to the jury during summation. Because this was not done, the evi-
dence was not "admissible [or] technically adequate" when presented.
Peay, 972 F.2d at 73.
Finally, and for the same reasons outlined above, the district
court’s decision to reopen the evidence to admit the Report after the
jury had retired for deliberations and in response to the jury’s request
infused the evidence with distorted importance, prejudiced the appel-
lants’ case, and denied the appellants a fair opportunity to respond to
the additional evidence. See id.; Abbas, 74 F.3d at 511.
At best, the Nunezes had some opportunity to examine Agent
Negron about the limited statements he attributed to Jenny during his
testimony that were also contained in the Report. However, there was
no reason for the appellants to cross-examine Negron regarding spe-
cifics of the Report that had not been related to the jury or the specif-
ics of the preparation of the Report. Nor could Agent Negron fully
respond to specific questions regarding the Report’s preparation, as
Agent Toomey prepared it two days after the interview was com-
pleted from the notes she took from Agent Negron’s translation. At
no time did Jenny or Carlos have a reason to cross-examine Agent
Negron regarding all of the statements in the Report. In addition,
Jenny’s alleged statements regarding Carlos’s role in the conspiracy
were only contained within the written Report, which was not admit-
12 UNITED STATES v. NUNEZ
ted until well after Carlos’s opportunity to cross-examine Jenny had
passed.3
In sum, we think it clear that the district court abused its discretion
in reopening the evidence to allow admission of the incriminating
Report after jury deliberations had begun. In doing so, the Report
gained distorted importance, prejudiced the appellants’ case, and pre-
cluded the appellants from "having an adequate opportunity to meet
the additional evidence offered." Peay, 972 F.2d at 73 (citation and
internal quotation marks omitted). Cf. United States v. Bayer, 331
U.S. 532, 538 (1947) (noting that the reopening of a case to admit a
document four hours after the jury had begun deliberating would be
prejudicial to the government because it "would then have had no
chance to comment on it, summation having been closed," and to the
codefendant who, "with no chance to cross-examine or to comment
would be confronted with a new item of evidence against him");
United States v. Paz, 927 F.2d 176, 179 (4th Cir. 1991) (finding no
abuse of discretion in district court’s refusal to reopen a case for the
defendant after both parties had presented proof, rested, made closing
arguments, and the district court rendered a verdict).4
3
Carlos also argues that admission of the Report violated his Fifth
Amendment rights to due process under Doyle v. Ohio, 426 U.S. 610,
611 (1976), because it included a reference to his decision not to waive
his rights and cooperate with agents. In light of our decision that the
belated admission of the Report was an abuse of discretion based upon
the concerns of the Confrontation Clause, we express no opinion as to
whether the Doyle error was harmless because Jenny alerted the jury to
the fact that Carlos had exercised his right to remain silent.
4
For the same reasons, the district court abused its discretion in failing
to grant a new trial. In light of our decision, we note, but find it unneces-
sary to rule upon, appellants’ alternative claim that the district court
improperly inserted itself into the trial by suggesting to the government
that it move to reopen the evidence. We also find it unnecessary to
address appellants’ claims that the district court erred in limiting Jenny’s
cross-examination of Agent Negron, and that their sentences must be
vacated under United States v. Booker, 125 S. Ct. 738 (2005). The dis-
trict court is free to consider these issues anew should they arise on
retrial.
UNITED STATES v. NUNEZ 13
For the foregoing reasons, we vacate the convictions and sentences
imposed upon Jenny and Carlos Nunez and remand for retrial.
VACATED AND REMANDED