United States v. Cruz ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CARMEN BLANCO CRUZ, a/k/a Negra,
a/k/a Mary Diaz Rodriguez, a/k/a
No. 95-5379
Mary Diaz, a/k/a Milena Espinosa
Orozco, a/k/a Maria, a/k/a Maria M.
Vera, a/k/a Maria Vera, a/k/a Ayda
Milena Rivera,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 95-5380
JORGE SAMUEL CRUZ, a/k/a Ramiro
Alonso Galeano, a/k/a Flaco,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5643
GLORIA MARGOTH VASQUEZ,
Defendant-Appellant.
Appeals from the United States District Court
for the District of South Carolina, at Charleston.
Solomon Blatt, Jr., Senior District Judge.
(CR-93-267)
Argued: March 7, 1997
Decided: April 23, 1997
Before ERVIN, WILKINS, and NIEMEYER, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Roy E. Black, LAW OFFICES OF ROY BLACK,
Miami, Florida; Richard John Diaz, RICHARD J. DIAZ, P.A.,
Miami, Florida, for Appellants. Matthew R. Hubbell, Assistant
United
States Attorney, Charleston, South Carolina, for Appellee. ON
BRIEF: Sally Gross-Farina, FARINA & GROSS-FARINA, P.A.,
Miami, Florida; Vincent J. Flynn, LAW OFFICES OF VINCENT J.
FLYNN, Miami, Florida; Nathan P. Diamond, LAW OFFICES OF
NATHAN P. DIAMOND, Miami, Florida; Dale T. Cobb, Charleston,
South Carolina, for Appellants. J. Preston Strom, Jr., United
States
Attorney, Ben A. Hagood, Jr., Assistant United States Attorney,
Charleston, South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Jorge Samuel Cruz (Jorge), Carmen Blanco Cruz (Carmen), and
Gloria Margoth Vasquez (Vasquez) appeal their convictions and sen-
tences on charges stemming from their efforts to free Jorge from
fed-
eral custody. All Appellants allege that the district court erred
in
2
admitting transcripts of recorded conversations between Carmen,
Vasquez, and a cooperating witness. Additionally, Carmen and
Vasquez challenge the manner in which the district court calculated
their base offense levels. Finding no error, we affirm.
I.
In 1989, Jorge was incarcerated in a Charleston, South Carolina
county jail awaiting sentencing on his convictions for conspiracy
to
possess with the intent to distribute cocaine, see 21 U.S.C.A. §
846(West Supp. 1996), and possession with the intent to distribute
cocaine, see 21 U.S.C.A. § 841(a) (West 1981). These convictions
stemmed from Jorge's role in a scheme to import 502 kilograms of
cocaine into the United States through Hilton Head, South Carolina.
In November 1989, Vasquez--a high-ranking member of the
Medellin cocaine cartel of Colombia, South America, with whom
Jorge was romantically involved--began to develop a plan to free
Jorge from prison. She first recruited Robertulio Viana and asked
him
to locate two "sure shots" to aid in the escape. Viana recruited
Hector
Ramirez and Pedro Aragon. Viana also enlisted the assistance of
Jorge's wife, Carmen, who believed that Viana's male"cousin" was
bankrolling the escape attempt. In fact, the "cousin" was Vasquez,
but
Viana concealed that fact at Vasquez's request.
The conspirators made several trips to Charleston to observe the
jail from the exterior, and Jorge made drawings of the interior of
the
prison and sent them to Carmen. Viana purchased stun guns, mace,
and smoke grenades for use during the escape. Also, the
conspirators
obtained a yellow powder purported to be Scopolamine, a powerful
tranquilizer, for the purpose of subduing Jorge's cellmates during
the
escape attempt. According to the plan ultimately developed for the
escape, Viana and Aragon would enter the prison yard at night, open
the window of Jorge's cell from the outside, and throw a bag of
tools
inside. Jorge would use the tools to cut through the bars on the
win-
dow and would be transported to Miami, Florida, hidden in an auto-
mobile driven by Carmen's daughter and a friend.
On February 15, the group gathered in Charleston to carry out the
plan. Just before the operation was to begin, however, Vasquez
paged
3
Viana and told him that Jorge's cell had been searched and security
tightened. Accordingly, the attempt was canceled. Shortly
thereafter,
authorities apprehended Viana, Aragon, and others involved in the
escape attempt. Vasquez and Carmen were not arrested at that time.
Vasquez hired attorneys for each of the conspirators, hoping to buy
their silence concerning her role in the offense. Additionally,
Vasquez
supported Viana's common-law wife, Yolanda Morot, and her chil-
dren. Viana, Aragon, and two others involved in the plot were con-
victed of various offenses and their convictions and sentences were
affirmed on appeal. See United States v. Aragon , 983 F.2d 1306(4th
Cir. 1993). Shortly thereafter, Viana agreed to cooperate with the
Government in hopes of reducing his sentence. He also encouraged
Morot to assist the FBI. Morot permitted the FBI to record her con-
versations with Vasquez and Carmen. Eventually, over 20 recordings
of conversations between Morot, Vasquez, and Carmen were made.
Jorge, Carmen, and Vasquez subsequently were charged with con-
spiracy to commit offenses against the United States, see 18
U.S.C.A.
§ 371 (West 1966); escape and assisting escape, see 18 U.S.C.
§§ 751(a), 752(a) (1988); obstruction of justice, see 18 U.S.C.A.
§ 1503 (West 1984); and aiding and abetting interstate travel in
aid
of a racketeering enterprise, see 18 U.S.C.§ 1952(a)(2) (1988 &
Supp. II 1991).
Shortly before Morot was scheduled to testify, she recanted certain
statements she had made to the FBI, leading the Government to
believe that she had been tampered with and that she would commit
perjury if placed on the stand. Accordingly, the Government
declined
to call Morot as a witness, instead relying on an FBI agent who had
assisted in making the recordings to authenticate the transcripts
of the
recorded conversations between Morot, Vasquez, and Carmen. The
transcripts were then introduced into evidence.
All Appellants were convicted of the conspiracy count and the sub-
stantive escape counts. In addition, Vasquez and Carmen were found
guilty of interstate travel in aid of a racketeering enterprise.
However,
the jury acquitted all Appellants of obstruction of justice. The
district
court subsequently imposed sentences of 180 months imprisonment
on Vasquez and Carmen and a sentence of 96 months imprisonment
4
on Jorge to be served consecutively to the sentence previously
imposed for the narcotics charges.
II.
Pursuant to 18 U.S.C.A. § 2511(2)(c) (West Supp. 1997), "a person
acting under color of law" may record a conversation provided "such
person is a party to the communication or one of the parties to the
communication has given prior consent." 18 U.S.C.A. § 2511(2)(c).
Appellants maintain that the transcripts of the recorded
conversations
between Morot, Vasquez, and Carmen were not admissible because
Morot did not voluntarily consent to the recordings. Rather, Appel-
lants assert, Morot was coerced into giving her consent by threats
made by Viana.
In support of this contention, Appellants point to a portion of a
statement made by Morot shortly before trial in which she averred
that she was motivated to cooperate with the FBI because of threats
from Viana:
[I]nitially . . . I was not interested in helping the FBI with
regard to my husband, Robert Viana, in his case. My hus-
band soon after called me from [prison] and asked me why
would I not cooperate in his case. He told me not to worry
and that one of these days he would be getting out of prison.
I took this statement to mean that he would one day get out
of prison and could someday do something to me, like hit
me which he had done on occasions during our marriage.
After this conversation, I contacted . . . the FBI.
J.A. 1397. Appellants maintain that this statement conclusively
estab-
lishes that Morot's consent to the recordings was not voluntary,
and
hence the recordings were inadmissible. We disagree.
We must consider the totality of the circumstances in determining
the voluntariness of a party's consent. See Schneckloth v.
Bustamonte,
412 U.S. 218, 227 (1973); United States v. Tangeman, 30 F.3d 950,
952 (8th Cir. 1994). In deciding whether Morot acted voluntarily,
the
pertinent question is whether she agreed to the recordings "con-
5
sciously, freely, and independently and not as the result of a
coercive
overbearing of [her] will" by government officials. United States
v.
Kelly, 708 F.2d 121, 125 (3d Cir. 1983); see Schneckloth, 412 U.S.
at 229. We review for clear error the finding of the district court
that
Morot voluntarily consented to the recordings. See United States v.
Antoon, 933 F.2d 200, 204 (3d Cir. 1991); cf. Ohio v. Robinette,
117
S. Ct. 417, 421 (1996) (noting that voluntariness of consent to
search
is a question of fact).
We conclude that the record amply supports the determination of
the district court that Morot voluntarily consented to the
recording of
her conversations with Vasquez and Carmen. Before any conversa-
tions were recorded, Morot signed two consent forms after govern-
ment agents read them to her in English and in Spanish and had her
read back a portion of the documents to ensure that she understood
them. And, throughout the time when conversations were being
recorded, Morot repeatedly made suggestions to FBI agents concern-
ing the best means of making the recordings. Furthermore, in the
pre-
trial statement Morot affirmed that she made the tape recordings
"voluntarily and of [her] own accord." J.A. 1397. Morot also stated
that she understood the consent forms and that "[t]he FBI never
pres-
sured [her] into signing the forms nor was[she] ever mistreated by
the FBI during [her] cooperation with them." J.A. 1398. This evi-
dence fairly compels a conclusion that Morot consented to the
record-
ings without being coerced to do so by government agents.
Furthermore, there simply is no evidence to support an assertion
that
Viana's "threats" were made at the behest of the government. See
United States v. Gonzalez, 71 F.3d 819, 828 (11th Cir. 1996)
(explain-
ing that "the absence of official coercion is a sine qua non of
effective
consent"). And, while fear of Viana may have played some role in
Morot's ultimate decision to assist the government, her consent is
not
thereby rendered involuntary. See Kelly, 708 F.2d at 125(explaining
that an individual's motivation is not a determinative factor in
decid-
ing whether that individual voluntarily consented to the recording
of
a conversation). Accordingly, we conclude that the district court
did
not commit clear error in finding that Morot voluntarily consented
to
the recordings.
6
III.
Vasquez and Carmen challenge the manner in which the district
court calculated their base offense levels. As noted above, Vasquez
and Carmen were convicted of a multi-object conspiracy. See 18
U.S.C.A. § 371. The identified objects of the conspiracy were: (1)
to
instigate and assist in an escape; (2) to obstruct justice; and (3)
to aid
and abet interstate travel in aid of a racketeering enterprise.1
Under
the guideline applicable to violations of § 371, the base offense
level
is established by reference to the guideline for each object
offense
"plus any adjustments from such guideline for any intended offense
conduct that can be established with reasonable certainty." U.S.
Sen-
tencing Guidelines Manual § 2X1.1(a) (1993); see also U.S.S.G.
§ 1B1.2(d) (directing that "[a] conviction on a count charging a
con-
spiracy to commit more than one offense shall be treated as if the
defendant had been convicted on a separate count of conspiracy for
each offense that the defendant conspired to commit"). Because
Vasquez and Carmen refused the offer of a special verdict form on
the conspiracy charge, the district court was required to
determine,
beyond a reasonable doubt, which object offenses Vasquez and Car-
men had conspired to commit. See U.S.S.G.§ 1B1.2, comment. (n.5).
After briefing and oral argument by the parties, the district court
found that they had conspired to obstruct justice. Accordingly, the
court applied the guideline for obstruction of justice, U.S.S.G.
§ 2J1.2.
Vasquez and Carmen assert that by virtue of their acquittal on the
substantive obstruction of justice charge, the district court was
collat-
erally estopped from applying the obstruction of justice guideline.
This argument fails to recognize that a charge of conspiracy "is
sepa-
rate and distinct from the underlying crime." United States v.
Shenberg, 89 F.3d 1461, 1480 (11th Cir. 1996) (internal quotation
marks omitted), petition for cert. filed, 65 U.S.L.W. 3468 (U.S.
Dec.
23, 1996) (No. 96-1009), and cert. denied, 117 S. Ct. 961 (1997).
_________________________________________________________________
1 The indictment included a fourth object offense, possession with
the
intent to distribute a controlled substance. The district court
refused to
submit this object offense and a related substantive count to the
jury on
the basis that the evidence was insufficient to support them. See
Fed. R.
Crim. P. 29(a).
7
Moreover, the conspiracy guideline directs that conspiracies are
prop-
erly treated as substantive offenses for sentencing purposes. See
United States v. Rose, 104 F.3d 1408, 1417 (1st Cir. 1997). Accord-
ingly, we reject this argument.
IV.
We conclude that the contentions raised by the parties are without
merit. We therefore affirm their convictions and sentences. 2
AFFIRMED
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2 We have carefully examined Appellants' remaining assertions of
error
and find that they lack merit.
8