United States v. Ornelas-Rodriguez ( 1994 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________________
No. 92-7596
______________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
SERGIO ORNELAS-RODRIGUEZ,
EDUARDO LOPEZ-GUTIERREZ,
ROGELIO ALEJANDRO GARCIA, and
GERALDO ANTONIO URREGO,
Defendants-Appellants.
_______________________________________________
Appeals from the United States District Court
for the Southern District of Texas
________________________________________________
(January 19, 1994)
Before DUHE, EMILIO M. GARZA, Circuit Judges, and BLACK, District
Judge.1
BLACK, District Judge:
Defendants, Sergio Ornelas-Rodriguez ("Ornelas"), Eduardo
Lopez-Gutierrez ("Lopez"), Rogelio Alejandro Garcia ("Garcia") and
Geraldo Antonio Urrego ("Urrego"), were tried jointly before a jury
and convicted of possession with intent to distribute approximately
47 kilograms of cocaine and with conspiracy to possess with intent
to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A) and 846. All four defendants now appeal their
convictions. We AFFIRM the district court in all respects.
1
Chief Judge of the Southern District of Texas, sitting by
designation.
I.
Cynthia Cruz met co-defendant Urrego at a party on
October 31, 1991 and they became romantically involved. Urrego
introduced her to co-defendants Garcia and Lopez. Urrego told Cruz
he was in the real estate business and asked her to go to Guatemala
to pick up some important papers from his brother. She agreed to
go and was accompanied by her friend McKinney and her two children.
The women were taken to the airport by Urrego and Lopez.
After picking up the papers in Guatemala, Oscar Lopez
told Cruz he had purchased a Chevrolet from Urrego that he was
unhappy with and asked her to drive it back to Texas. Cruz spoke
with Urrego on the telephone and he told her to make the return
trip in the automobile. The car was allegedly in need of repair,
and Urrego sent Cruz money so this could be done.
The women left for Houston and in Tapachula they were met
by Garcia and Ornelas who informed them that they would be
following them through Mexico in a red Mustang. All evidence
showing Cruz and McKinney had been in Guatemala was taken from them
including the papers Cruz was sent to retrieve. When the women
arrived in Matamoros they were told to wait one more day before
entering the United States. Cruz called Urrego and informed him
she was coming home. He accepted her decision.
When Cruz arrived at the Sarita Border Patrol Checkpoint,
Agent Guillen asked if he could inspect the trunk. Cruz consented.
When Guillen opened the trunk he detected a strong odor of
mothballs and glue and noticed that the trunk was not as deep as it
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should have been. Cruz was directed to the secondary inspection
area where the car was inspected by a canine unit. The dog alerted
as it was brought toward the trunk of the vehicle. Guillen then
drilled holes into the trunk and a white powder was extracted which
tested positive for cocaine. Agents discovered a total of 49
bundles of cocaine in the car.
Cruz and McKinney were interrogated by Guillen in an
office overlooking the primary inspection area. Three hours after
the women were detained the Mustang arrived at the checkpoint.
McKinney began screaming "It's them!" and dove for the floor. The
driver was Ornelas and Garcia was his passenger. The vehicle and
its occupants were detained at the primary checkpoint. When
Ornelas was told to turn off the car and get out he hesitated.
Agents believed he was contemplating an escape and physically
removed Ornelas from the car. Both men were very nervous.
Agents searched the Mustang and found a tourist entry
document for entry into Mexico in the names of Garcia and Ornelas,
a page with three phone numbers and two duffle bags. One of the
bags contained a set of keys to the Chevrolet driven by Cruz.
Ornelas admitted these were his bags but during the interrogation
Garcia said the keys belonged to him. On the way to the holding
cell Agent McGuire overheard Garcia tell Ornelas that if they had
waited one more day (until Thanksgiving) they would not have been
caught.
Both Garcia and Ornelas claimed they did not know Cruz or
McKinney and that they had come down from Houston to visit family
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in San Juan de los Lagos. When Garcia was shown a photograph of
him embracing Cruz he admitted he had met her at a club in Houston
and loaned her his car.
Warren, a Corpus Christi police officer assigned to the
DEA Task Force, interviewed Cruz. The conversation digressed and
according to Cruz he made sexual advances toward her. He told her
that if she cooperated he would help her and she complied.
Afterwards, Warren told Cruz she had been used by Urrego and that
if she did not help them apprehend him the brunt of the offense
would fall on her. Cruz was told to call Urrego and lure him to
Corpus Christi. She called Urrego and told him the car had broken
down and he agreed to come and help her.
The DEA arranged for video and audio surveillance at the
Marriott Hotel and Cruz was given a "bug". When Urrego and Lopez
arrived at Cruz' room McKinney was allegedly out with the car.
Cruz told them the car had been stopped and searched outside Vera
Cruz by Mexican officials and that after the search she said
"Pancho" had told her everything. Lopez got up and suggested they
wait for McKinney in the lobby. As they were leaving the room,
three officers emerged from an adjacent room and told the men to
stop. Lopez appeared to reach for his beltline so the officers
drew their guns and forced Urrego and Lopez into the elevator.
Lopez, who did not have a weapon, was restrained. Urrego was hit
several times in the head and kicked in the stomach. His vehicle
was seized and the suspects were taken to DEA headquarters.
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Urrego, who gave a false name, was interviewed by Agent
Irr; however, the interview stopped when Urrego asked for an
attorney. Urrego's briefcase was found in his car and it contained
telephone records for a Lilia Colmenares of Houston. Several calls
from Guatemala and Matamoros were on the statement. Urrego claimed
he lived at the Houston address on the Colmenares bill. It was
also discovered that the three phone numbers on the paper found in
the Mustang all belonged to Urrego.
Agent O'Brien interviewed Lopez who told him he had been
staying in a LaQuinta Inn in Houston "waiting for a load" which he
thought was a load of cocaine. He knew two women would be bringing
it into the country because he had taken them to the airport.
Cruz, McKinney, Ornelas, Garcia, Urrego and Lopez were
indicted on December 11, 1991 and charged with possession with
intent to distribute approximately 47 kilograms of cocaine and with
conspiracy to possess with intent to distribute cocaine in
violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(A) and 846. Cruz
decided to plead guilty and cooperate with the government.2 Lopez,
Ornelas, Garcia and Urrego pled not guilty and all four were
convicted by a jury.3
2
When Cruz came to Corpus Christi to help the government
prepare for trial Agent Warren came to her hotel room and forced
her to have sex with him a second time. She had told no one of the
first incident but this time the act was done in McKinney's
presence. McKinney reported the incident to agent Irr.
3
After Cruz testified at trial the charges against her and
McKinney were dismissed on the government's motion.
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The district court sentenced Rodriguez and Garcia to 169
months each. Lopez received a term of 121 months. Their sentences
were to be followed by concurrent five-year terms of supervised
release. Urrego was sentenced to a 292 month term of confinement
to be followed by concurrent 10-year terms of supervised release.
Rodriguez, Garcia and Lopez were each ordered to pay a fine of
$1000.00 and Urrego's fine was assessed at $25,000.00. All four
defendants were ordered to pay the mandatory special assessment of
$100.00 each.
II.
All four defendants first raise the claim that the
evidence was insufficient to sustain their convictions. In
reviewing the sufficiency of the evidence, this Court views all
evidence, whether direct or circumstantial, and all inferences
drawn from this evidence, in the light most favorable to the
verdict. United States v. Madison, 990 F.2d 178, 181 (5th Cir.
1993). The conviction should be affirmed "if the evidence so
viewed would permit a rational jury to find all elements of the
crime proven beyond a reasonable doubt. . . ." United States v.
Roberson, 6 F.3d 1088, 1093 (5th Cir. 1993). "It is not necessary
that the evidence exclude every rational hypothesis of innocence or
be wholly inconsistent with every conclusion except quilt, provided
a reasonable trier of fact could find the evidence establishes
guilt beyond a reasonable doubt." United States v. Pruneda-
Gonzalez, 953 F.2d 190, 193 (5th Cir.), cert. denied, ___ U.S.
___, 112 S.Ct. 2952 (1992). The Court must not concentrate on
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"whether the trier of fact made the correct guilt or innocence
determination, but rather whether it made a rational decision to
convict or acquit." Herrera v. Collins, ___ U.S. ___, 113 S.Ct.
853, 861 (1993).
To prevail in a drug conspiracy prosecution brought
pursuant to 21 U.S.C. §§ 841(a)(1) and 846, the government must
prove beyond a reasonable doubt that 1) there existed an agreement
between two or more individuals to violate the narcotic laws, 2)
defendant was aware of the agreement and 3) defendant was a
voluntary participant in the agreement. United States v. Gallo,
927 F.2d 815, 820 (5th Cir. 1991). All of these elements may be
inferred from the "development and collocation of circumstances."
United States v. Vergara, 687 F.2d 57, 61 (5th Cir. 1982).
The jury may rely on presence or association in
conjunction with other evidence but mere presence at the scene or
a close association with the conspirators, without more, is an
insufficient basis for inferring participation. United States v.
Maltos, 985 F.2d 743 (5th Cir. 1992). Furthermore, placing a
defendant in a "climate of activity that reeks of something foul"
is not enough to support a conspiracy conviction. United States v.
Galvan, 693 F.2d 417, 419 (5th Cir. 1982).
In order to convict these defendants of possession with
intent to distribute narcotics, the government was required to
prove beyond reasonable doubt that a conspiracy existed and that
each defendant voluntarily participated therein. United States v.
Rodriguez-Mireles, 896 F.2d 890 (5th Cir. 1990). "No evidence of
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overt conduct is required." United States v. Hernandez-Palacios,
838 F.2d 1346, 1348 (5th Cir. 1988).
All four defendants contend there was insufficient
evidence to support their convictions and believe the government
failed to show they were knowingly involved in a conspiracy to
possess with intent to distribute cocaine. However, direct
evidence of an agreement to deal in drugs rarely exists. "A
conspiracy agreement may be tacit, and the trier of fact may infer
agreement from circumstantial evidence." Id. An abundance of
evidence was presented by the prosecution which established the
existence of the conspiracy and the knowledge of the voluntary
participation in the conspiracy by all four defendants.
Urrego
Defendant Urrego asserts the evidence shows only that he
caused Cruz to go to Guatemala and that this was done for the sole
purpose of obtaining the real estate papers. He purchased round-
trip airline tickets for both Cruz and McKinney. The reason the
women returned by car was because his friend in Guatemala wanted
them to drive the car back. When his co-defendants insisted that
Cruz stay an extra day he told her she could come home. He
believes that the fact that he used an assumed name when arrested
and had the title to the car in his briefcase is inadequate.
Testimony reflects that everyone Cruz met in Guatemala
was associated with Urrego and the jury rejected the argument that
it was a coincidence that Garcia and Lopez were in Guatemala at the
same time. The evidence showed that Urrego was the one the others
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contacted whenever a problem arose and he sent money when it was
needed. It was Urrego who ultimately convinced Cruz to drive the
car back to Texas. Both Ornelas and Garcia had telephone numbers
linking them to Urrego. Urrego was unconcerned with the real
estate papers Cruz had been sent to retrieve. When he arrived in
Corpus Christi his primary concern was the car and whether McKinney
would contact the police.
Urrego used an alias on two occasions, once when he tried
to send Cruz money and again when he was booked. In addition, the
phone numbers in the possession of Garcia and Ornelas in
conjunction with the calls from Guatemala and Matamoros tie him to
the cocaine.
Resolving all inferences and credibility determinations
in favor of the jury's verdict as required by United States v.
Santisteban, 833 F.2d 513, 516 (5th Cir. 1987), a rational trier of
fact could have found that defendant Urrego voluntarily agreed to
and participated in a conspiracy to possess cocaine with the intent
to distribute and knowingly possessed cocaine.
Lopez
Defendant Lopez contends that there is only scant
circumstantial evidence against him and that the government relied
heavily upon his confession. Whether the confession should have
been suppressed is addressed in Section III, infra. He believes
that he was not a target of the investigation and that the
government did not know of his existence until he appeared at the
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hotel in Corpus Christi with Urrego to arrange for the repair of
the car.
The circumstantial evidence shows Lopez was associated
with some of the other defendants, he went with Urrego when he took
Cruz and McKinney to the airport and he repeated the assertion by
Cruz that someone "told her everything". Furthermore, a week
before his arrest he went to the Department of Transportation to
pick up the title to the car driven by a co-defendant at the time
of his arrest. The address he gave when the title was issued did
not exist.
Lopez believes that since he was not found to be in
actual possession of the cocaine his conviction must be reversed.
Possession may be constructive if the evidence indicated the
defendants ownership, dominion and control over the [narcotic].
United States v. Richardson, 848 F.2d 509, 512 (5th Cir. 1988). In
addition, even if the issues of Lopez's constructive possession
with intent to distribute were not clearly present, a conspirator
is liable for the substantive offenses of his co-conspirators while
he is a member of the conspiracy. United States v. Garcia, 917
F.2d 1370, 1377 (5th Cir. 1990) (quoting United States v. Basey,
816 F.2d 980, 997 (5th Cir. 1987).
Although much of the government's evidence regarding the
participation by Lopez in the conspiracy may have been
circumstantial, it was more than sufficient to support the jury's
verdict. See United States v. Martinez, 975 F.2d 159, 162 (5th
Cir. 1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1346 (1993).
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Therefore, we find there was sufficient evidence to support the
jury verdict.
Garcia
According to defendant Garcia, it was a coincidence that
he arrived at the Sarita checkpoint shortly after Cruz and
McKinney. He contends he did not know the car driven by Cruz
contained cocaine and he was not involved in a conspiracy to bring
the drugs across the border.
The testimony shows that Garcia knew Cruz and they had
their picture taken together, he owned the car she was driving, was
in possession of an extra set of keys to the car and was with her
in Tapachula and Matamoros. He also commented to Ornelas that they
should have waited another day and the Mustang contained a page of
phone numbers linking him to Urrego and Lopez.
Like Lopez, he contends that his conviction must be
reversed because he had no actual possession of the cocaine.
However, he too had constructive possession because some of his co-
defendants had actual or constructive possession and they were his
co-conspirators.
The jury refused to accept the premise that all of these
events were purely accidental. While each piece of evidence,
viewed independently may have been susceptible of innocent
interpretation, we are convinced that the jury reasonably could
have concluded that when examined in the aggregate, the evidence
sufficed to establish Garcia's guilt.
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Ornelas
Defendant Ornelas first appears on the scene in Mexico
driving the red Mustang. This is the vehicle which contained
Urrego's telephone numbers and the keys to the load-vehicle. He,
along with Garcia, was responsible for the security of the load.
They relieved Cruz and McKinney of all evidence that they had been
to Guatemala and controlled the keys to the vehicle. This,
together with the fact that he was driving the Mustang, his conduct
in Matamoros and his hesitancy to comply with instructions at the
checkpoint make it reasonable for the jury to conclude he was
involved in the conspiracy. The district court did not err in
accepting the jury's verdict.
III.
Lopez also argues that the district court erred by
denying his motion to suppress his confession. He claims that
because he was close to Urrego when Urrego was beaten by Officer
Warren in the elevator, his later confession at DEA headquarters
was coerced and admitted in violation of his due process rights.
When reviewing a ruling from a suppression hearing,
"[t]his Court must give credence to the credibility choices and
findings of fact of the district court unless clearly erroneous."
United States v. Raymer, 876 F.2d 383, 386 (5th Cir.),cert. denied,
493 U.S. 870 (1989) (citing United States v. Watson, 591 F.2d 1058,
1061 (5th Cir.), cert. denied, 441 U.S. 965 (1979)). A finding is
clearly erroneous only when the reviewing court is left with the
"definite and firm conviction that a mistake has been committed."
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Anderson v. City of Bessemer City, 470 U.S. 564 (1985) (quoting
United States v. United States Gypsum Co., 333 U.S. 364 (1948)).
The ultimate issue of voluntariness, however, is a legal question
requiring the reviewing court to make an independent determination.
Raymer, 876 F.2d at 386 (citations omitted).
The trial court held a four day hearing on pretrial
motions. With respect to the motion to suppress of defendant Lopez
it found:
It is at this point where the credibility of
these witnesses is the most important. The
court does not find that what occurred at the
time of the arrest was influential in what
occurred that night later at the DEA when the
defendant gave his statement. The court
recalls that the burden of proof placed upon
the government has been recently established
and stated in this circuit to be by a
preponderance of the evidence, which means
whether or not the government has proven that
its version of the facts is probably correct,
not clear and convincing. Were this a clear
and convincing case, the government's burden
would not be met. The question is whether or
not it is probably true that the defendant was
extended his warnings and knowledgeably and
voluntarily waived them. And again, in
viewing that testimony between O'Brien and
Lopez, the court finds that it is probably
true that O'Brien is telling the truth and
Lopez is not. Not only are the motivational
factors different, the court believes that the
defendant Lopez convicts his own credibility
by the exaggeration of his testimony. He was
not to the court a credible witness. On the
contrary O'Brien was. He remembered generally
what happened, he was not sure of other
things, and that itself brings a certain
degree of credibility to the court. He
remembered the most important matters, and
that is that the defendant was in no
circumstances of physical distress, no
circumstances of physically being bound, that
he was given the warnings, and that there were
basically two separate events of
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interrogation, the second occurring after the
defendant was confronted with information that
Urrego himself gave during an illegal inquiry.
That type of information is the type of
information that would inspire a co-defendant
to say, according to the government's theory,
"The boss has talked, there's no reason for me
to be quiet any longer." And the boss had
talked. That, to the court is much more
credible than a scenario that a DEA officer
had threatened to beat, had screamed, had
cursed a defendant. It is clearly true the
DEA officers and O'Brien included probably
pointed out to the defendant the advantages of
cooperation. That does not remove free will.
The court did not hear circumstances that
convinced it that the defendant's free will
was jeopardized.
This Court's independent review of the suppression hearing evidence
confirms the trial court's findings of fact and must determine what
legal conclusions are to be derived from these facts.
The standard for determining whether a confession is
voluntary is whether, taking into consideration the "totality of
the circumstances," the statement is the product of the accused's
"free and rational" choice. Martinez v. Estelle, 612 F.2d 173, 177
(5th Cir. 1980) (quoting Greewald v. Wisconsin, 390 U.S. 519, 521
(1968)). If a person "voluntarily, knowingly and intelligently"
waives his constitutional privilege a statement is not considered
compelled within the meaning of the Fifth Amendment. United States
v. Rogers, 906 F.2d 189, 191 (5th Cir. 1990) (citing Miranda v.
Arizona, 384 U.S. 436, 444 (1966)). Not only must the confession
be the result of a free and deliberate choice but also made with an
awareness of the right being abandoned and the consequences of that
decision. Moran v. Burbine, 475 U.S. 412, 421 (1986). A
confession does not occur in a vacuum but is a response to a
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particular fact scenario. United States v. McCrary, 643 F.2d 323,
329 (5th Cir. Unit B 1981). Therefore, the issue of whether a
confession was voluntary must be reviewed on a case-by-case basis.
Jurek v. Estelle, 623 F.2d 929, 937 (5th Cir. 1980)(en banc), cert.
denied, 450 U.S. 1001 (1981).
The admission of the Lopez confession turns upon a
credibility choice. The district court's decision to choose the
credibility of O'Brien was not clearly erroneous. It believed
O'Brien when he said Lopez had been told Urrego had talked and that
there were advantages to cooperating. The confession took place
several hours after the incident in the elevator and there is
absolutely no evidence that Lopez was personally threatened with
physical violence if he failed to confess. As a result we affirm
the district court's denial of the suppression motion.
IV.
Garcia contends his Sixth Amendment right of cross
examination was violated when Officer Warren invoked the Fifth
Amendment after being called to testify by Defendant Urrego. Cruz
had entered into a plea agreement and testified against Urrego,
Lopez, Garcia and Ornelas. During cross-examination she alleged
sexual misconduct during her incarceration at the Sarita Checkpoint
by Officer Warren. Warren was faced with criminal charges stemming
from this incident. As a result, Warren was called as a witness by
the defense to test the credibility of Cruz he invoked the Fifth
Amendment. The defense then moved for a mistrial and a hearing was
held outside the presence of the jury. The motion was denied.
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Garcia argues that the Sixth Amendment includes the right
of cross-examination of a witness as well as the right of
confrontation. United States v. Wilschner, 624 F.2d 840 (8th
Cir.), cert. denied, 449 U.S. 994 (1980). He contends Cruz was a
questionable witness and Warren's invocation of the Fifth Amendment
added more weight to the government's case because the jury was
forced to rely on the testimony of a dubious witness.
The court must make two inquires when determining whether
reversible error occurred as a result of a witness' invocation of
his Fifth Amendment rights. First, error may occur due to
prosecutorial misconduct if the government makes a flagrant attempt
to build its case on inferences arising from the assertion of the
privilege. United States v. Victor, 973 F.2d 975, 979 (1st Cir.
1992). Second, error may occur if the refusal to answer adds
considerable weight to the government's case. Id. Garcia relies
on United States v. Quinn, 543 F.2d 640, 650 (8th Cir. 1976) which
deals with a government witness asserting the Fifth Amendment.
In the case at hand, Warren was not a government witness.
Therefore, neither the court nor the government violated Garcia's
right to cross-exam Warren. We decline to extend existing case law
to include rebuttal witnesses called by the defense. Since
Garcia's right to cross-examination was not violated by either the
government nor the court we find the district court did not err
when it refused to grant Garcia's motion for a mistrial.
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V.
Urrego asserts that during voir dire, which occurred on
April 13, 1992, the court made a comment that could allegedly be
construed as improperly characterizing the burden of proof required
for a conviction which resulted in a denial due process.
The record shows that the court stressed during its
preliminary instructions to the jury that the burden of proof is
always on the government. However, the Court also made the
following comment which forms the basis of Urrego's complaint:
Today is a great week for the exercise of all
sorts of duties of citizenship, especially for
you. You have jury service on Monday, you can
vote on Tuesday, and you can pay your income
taxes on Wednesday, and you can go to church
on Friday and Sunday of Easter Holy Week and
pray that you made all the right decisions and
pray that you properly accounted for your
taxes.
Defense counsel expressed concern with this statement and discussed
the matter with the Court. The Court agreed with counsel that the
comment was inappropriate.
When the case went to the jury on April 22, 1992, the
jurors were given detailed instructions on the presumption of
innocence and the burden of proof. It is presumed jurors follow
their instructions. United States v. Villarreal, 963 F.2d 725, 729
(5th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 353 (1992)(citing
Richardson v. Marsh, 481 U.S. 200, 206 (1987)).
Defendant contends this statement affected the jury's
consideration of the burden of proof because although the jurors
were given a proper instruction concerning proof beyond a
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reasonable doubt, the invitation to pray set a different standard.
Urrego argues that this standard is based on the individual jurors'
concept of God and whatever expectations must be satisfied within
that context. An invitation to pray implies that the person in
authority in the courtroom believes there is a standard of judgment
outside the courtroom and outside the standard that is to be
applied by them according to the law.
The Court has carefully reviewed the record on this
issue. Eleven days passed from the time the preliminary statement
was made and the case went to the jury. Any error which may have
occurred as a result of this casual remark was cured by the passage
of time and the district court's detailed instruction on the
presumption of innocence and the burden of proof. There is no
evidence that the statement in question deprived Urrego of a fair
trial.
VI.
Finally, Urrego contends he was denied his right to due
process because the district court denied his motion to dismiss
based on outrageous government conduct. Urrego claims that after
Officer Warren had sex with Cruz during her interrogation he told
her that she had to contact Urrego because if the government could
not get anything on him the majority of the blame would fall on
her. Cruz called Urrego twice from the DEA office. Urrego agreed
to wire her $200 and meet her at the Marriott Hotel in Corpus
Christi. When Urrego arrived, Cruz was instructed by the DEA to
get him to talk about the drugs in the car. She was unsuccessful.
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Defendant argues that this Court should invoke its supervisory
powers and set aside the district court's order denying the motion
to dismiss.
The underlying purpose of these inherent supervisory
powers are to 1) implement a remedy for a violation of a recognized
right, 2) to preserve judicial integrity by insuring that the
conviction rests on appropriate consideration validly before the
jury and 3) as a remedy designed to deter further illegal conduct.
United States v. Hasting, 461 U.S. 499 (1983). Urrego contends
Warren took advantage of his position and abused the authority
intrusted to him. He believes that moments after the first sexual
act Warren set in motion activities which caused Urrego to travel
to Corpus Christi where he was arrested. Urrego argues that the
harm increased when the government used Cruz, the most detrimental
witness against him, as a witness when it had knowledge of the
misconduct.
"Reversals of convictions under the court's supervisory
power must be approached "with some caution." United States v.
Payner, 447 U.S. 727, 734 (1980). In addition, "[s]upervisory
power to reverse a conviction is not needed as a remedy when the
error to which it is addressed is harmless since, by definition,
the conviction would have been obtained notwithstanding the
asserted error." Hasting, 461 U.S. at 506.
Cruz testified that she would have assisted the
government without the sex and there is no evidence that either the
government or the Court sanctioned Officer Warren's conduct. An
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official investigation was initiated to determine if criminal
charges were warranted and the Court chastised the DEA for allowing
the situation to occur. Furthermore, the evidence used against
Urrego was independent of the sexual activity. It included the
materials taken from his brief case, telephone records and toll
receipts. This Court concludes that this is not a case where it is
necessary for it to exercise its supervisory powers.
For the foregoing reasons, the judgment of the district
court is AFFIRMED in all respects.
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