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United States v. Giraldo

decided as amended.: June 4, 1987.

UNITED STATES OF AMERICA, APPELLEE,
v.
JOSE ANTONIO GIRALDO, DEFENDANT-APPELLANT



Appeal from a judgment of the United States District Court for the Southern District of New York, Kevin Thomas Duffy, Judge, convicting defendant of narcotics offenses in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 846. Affirmed.

Author: Kearse

Before: TIMBERS, KEARSE, and PIERCE, Circuit Judges.

KEARSE, Circuit Judge:

Defendant Jose Antonio Giraldo appeals from a judgment of the United States District Court for the Southern District of New York, entered after a jury trial before Kevin Thomas Duffy, Judge, convicting him of conspiring to distribute cocaine and to possess cocaine with intent to distribute it, in violation of 21 U.S.C. § 846 (1982), and of attempting to distribute cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 846 (1982), of 21 U.S.C. § 841(b)(1)(A) (1982), as amended, Oct. 12, 1984, Pub. L. 98-473, tit. II, § 502, 98 Stat. 2068, and of 18 U.S.C. § 2 (1982). Giraldo was sentenced to concurrent terms of imprisonment of 40 years on each count, without parole, and assessed a special $50 fine on each count. On appeal, he contends principally that he was denied a fair trial by the district court's mid-trial sentencing of an alleged coconspirator, causing the latter to testify against him, and that the trial court erred in admitting certain tape recordings into evidence against him. Finding no merit in any of his contentions, we affirm the judgment of conviction.

I. BACKGROUND

The government's proof at trial was presented principally through (1) the testimony of law enforcement officers, (2) the testimony of Albertose Mesa, who had originally been a codefendant of Giraldo and had pleaded guilty to two counts of a superseding information, and (3) the introduction of physical evidence seized from Giraldo's apartment, including cocaine, cash, documents, and answering machine tape recordings that the government contended reflected coded orders for cocaine. Taken in the light most favorable to the government, the evidence was as follows.

A. The Events Leading to Giraldo's Arrest

In May 1984, undercover New York City Police Detective Robert Johnson was introduced to Albertose Mesa, who undertook to find a source that could supply Johnson with 10-20 kilograms of cocaine per week. In the months that followed, Mesa attempted, through his brother, to find a cocaine source in Colombia. On the evening of December 13, 1984, Mesa's brother received a call from a male voice that stated, "We got the stuff in New York." Mesa spoke to the caller, who identified himself as "Tony" or "Tono". A series of telephone calls followed between Mesa and Tony and Mesa and Johnson to arrange for the delivery to Johnson of five kilograms of cocaine on December 17, with additional sales of 10-20 kilos to follow if all went well.

On December 17, Johnson and Mesa agreed to meet at a restaurant at 8 p.m. Johnson asked Mesa to call his beeper once Mesa had the cocaine in his possession. At about 7 p.m., Johnson's beeper sounded and displayed the telephone number 507-0974. Johnson called the number and asked if Mesa was there. A male voice replied, "No. He go there. Don't worry."

At 8 p.m., Johnson was met at the restaurant by Mesa, accompanied by Roberto Ramos, a codefendant at the trial below who was acquitted of the charges against him. Mesa said the cocaine was in their car; Ramos then went to that car, and Mesa and Johnson went to Johnson's car where Johnson showed Mesa a "flash roll" of $80,000 in cash. Mesa then left to retrieve the cocaine and returned a short time later in a car driven by Ramos. Ramos told Johnson the cocaine was in the trunk and released the trunk latch from inside the car. After Mesa opened the trunk and showed Johnson a flight bag continuing the five kilos of cocaine, Ramos and Mesa were arrested.

Following these arrests, Ramos told the arresting agents that, before going to the restaurant, he had driven Mesa to 80-22 47th Avenue in Queens. Mesa had entered the second-floor apartment at that address with an empty flight bag and minutes later had come out carrying a full flight bag that he placed in the trunk of Ramos's car.

During their early communications, Tony had told Mesa that his address was 80-22 47th Avenue in Queens. A check with the telephone company revealed that 507-0974, the number that had appeared on Johnson's beeper, was subscribed to at that address. The second-floor apartment at that address had been rented to Giraldo under an alias and was occupied by Giraldo, his wife, and his two female children.

Late on the evening of the arrests, agents executed a search warrant for the second-floor apartment of 80-22 47th Avenue. Shortly after the search began, Giraldo arrived. Urged by the agents to cooperate, Giraldo led them to an open safe in which the agents found, inter alia, 1.7 kilograms of cocaine and more than $72,000 in cash, and to a closet in which they found triple-beam scales and other paraphernalia commonly used in narcotics operations. The agents also found coded drug records and a telephone answering machine containing a tape that had recorded several messages. The messages were terse orders in terms of bread and chicken. One man called twice to order single piece of pita bread for delivery; another stated, "I need the bread very badly"; a third started to say that he needed some bread but, perhaps realizing that the message was being recorded, stopped in mid-sentence, said "Oh my goodness," and hung up. The government argued that these messages were coded orders for cocaine.

B. Mesa's Testimony

In February 1985, Mesa pleaded guilty to two counts of a three-count superseding information and entered into a cooperation agreement with the government. In his allocution, he made statements inculpating both Giraldo and Ramos. In September 1986, however, immediately before the trial of Giraldo and Ramos was to begin, Mesa recanted his statements about Ramos's involvement in the cocaine conspiracy. The government revoked Mesa's cooperation agreement and announced that it would call him as a hostile witness.

When called as a witness at the trial, Mesa, outside the presence of the jury, announced his intention to invoke his Fifth Amendment privilege against self-incrimination. The trial court then granted him use immunity pursuant to 18 U.S.C. §§ 6001-6003 (1982) and ordered him to testify. The jury was returned to the courtroom and Mesa began to testify. When questioned about having received a call from Tony on December 13, 1984, however, Mesa refused to answer. The jury was sent out of the courtroom, and the court warned Mesa that if he persisted in refusing to testify, he would be held in contempt of court and would be sentenced that day on the counts to which he had pleaded guilty.

Following a lunch recess, Mesa persisted in his refusal, and Judge Duffy promptly found him in contempt of court. Mesa waived his right to a presentence report on his outstanding narcotics charges, and Judge Duffy thereupon sentenced him to, inter alia, six months' imprisonment for contempt, to follow a total of 40 years' imprisonment on the two counts to which he had pleaded guilty, with recommendations that Mesa serve his prison term in Marion, Illinois, and not be considered for parole.

The next day, Mesa decided to testify. When the government recalled him to the witness stand, he testified that "Tony" was Giraldo, and that Mesa had received from Giraldo at 80-22 47th Avenue the five kilograms of cocaine he tried to sell to Johnson. Mesa also testified that he had been sentenced to 40-1/2 years imprisonment by Judge Duffy after refusing to testify the day before, that he no longer had any ...


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