946 F2d 887 United States v. Cotelo

946 F.2d 887

UNITED STATES of America, Plaintiff-Appellee,
Jesus COTELO, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
Ronald Marcello CAVINESS, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
Julio MEDINA, a/k/a Bosco, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
Trump ASHRUE, a/k/a Mark, Defendant-Appellant.

Nos. 90-5699, 90-5702, 90-5703 and 90-5704.

United States Court of Appeals, Fourth Circuit.

Argued June 7, 1991.
Decided Oct. 22, 1991.
As Amended Nov. 25, 1991.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Appeals from the United States District Court for the Middle District of North Carolina, at Greensboro. Norwood Carlton Tilley, Jr., District Judge. (CR-89-276-G)

ARGUED: William C. Ingram, Jr., Floyd, Greeson, Allen & Jacobs, Greensboro, N.C., for appellant Medina; David Ferris Tamer, Winston-Salem, N.C., for appellants Caviness and Ashrue; David Bernard Smith, Assistant United States Attorney, Senior Litigation Counsel, Greensboro, N.C., for appellee.

On Brief: Charles A. Lloyd, Greensboro, N.C. for appellant Cotelo; Robert H. Edmunds, Jr., United States Attorney, Greensboro, N.C., for appellee.






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Jesus Cotelo, Julio Medina, Mukailan Trump Ashrue, and Ronald Marcello Caviness were convicted on a three count indictment with possession, and conspiracy to possess, multiple kilogram quantities of cocaine with intent to manufacture cocaine base in violation of 21 U.S.C. § 846, 21 U.S.C. § 841(b)(1)(A), and 21 U.S.C. § 841(a)(1). They were sentenced in accordance with the United States Sentencing Guidelines. Cotelo and Medina were each sentenced to one hundred seventy-eight months' incarceration; Ashrue and Caviness received one hundred eighty-eight and two hundred forty months' sentences respectively. In addition, a five year term of supervised release was imposed upon each defendant. We affirm.


The record reveals that on June 6, 1989, detectives of the Greensboro Police Department and agents of the Drug Enforcement Administration were involved in drug interdiction efforts at the Greensboro bus station. Reinaldo DeJesus was observed quickly exiting a bus carrying a small black shoulder bag. Officer Bellamy approached DeJesus and asked his name and destination. DeJesus said that he was visiting a friend and pointed to a section of the city where there were no houses. His suspicion aroused, officer Bellamy requested permission to search DeJesus' bag. DeJesus consented, a search revealed three kilograms of cocaine, and he was arrested.


Realizing his predicament, DeJesus gave information implicating the defendants in this illegal drug activity, as well as a similar delivery in May of 1989. After further investigation by law enforcement officials, the defendants were arrested and charged as indicated above. Evidence at trial revealed that the defendants belonged to a conspiracy that imported cocaine and then manufactured it into crack. Cotelo and Medina were the source, Ashrue the middleman and manufacturing expert, DeJesus the courier, and Caviness the distributor.


The defendants were convicted of a general conspiracy count and two possession with intent to manufacture counts pertaining to the May and June cocaine deliveries to Greensboro. They appeal.


Cotelo and Medina's first argument on appeal concerns testimony by DeJesus that they were incarcerated with him at the Chatham County Jail. During direct examination by the government, DeJesus gave testimony that implicated Cotelo and Medina in the illegal drug activity alleged in the indictment. On cross-examination, defense counsel sought to impeach DeJesus by introducing a statement he previously made to defense counsel's witness while DeJesus was incarcerated at the jail. This statement recanted the statement DeJesus had made to police initially that implicated the defendants. On redirect, the fact that DeJesus was incarcerated with Medina and Cotelo at the time of this recantation, and that DeJesus made the recantation to "get [Cotelo] off [his] back," was brought out by the government.


Cotelo and Medina contend that the admission of this testimony denied them a fair trial. We do not agree. The testimony was properly before the jury to judge the credibility of the recantation and its weight as evidence impeaching DeJesus' initial statement, and trial testimony, implicating the defendants. In any event, the fact that the three were in the same cell-block was initially elicited during examination by the defense, during its cross-examination of DeJesus.


Their second assignment of error relates to the trial court's indication that it would look into the possibility of declaring a defense witness "inherently incredible." While DeJesus was on the stand, counsel for Cotelo attempted to impeach him through a prior statement he allegedly made to a fellow inmate, Richard Swimm. At a side-bar conference the court stated that it had sentenced Swimm a week ago and found him to be "one of the most inherently incredible people I have ever seen in a courtroom and would be such as a witness." The court further stated that it would investigate what authority it had to declare Swimm inherently incredible, noting, "I don't know that I have the authority to do that." Counsel for Cotelo and Medina discussed the matter and elected not to pursue it at that time.

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At the conclusion of the day's proceedings the court again asked defense counsel whether it wished to be heard on the issue. Counsel for Cotelo stated that they did not. Medina's lawyer, after a brief bench conference during which the court restated its position, concluded that: "I don't think we need to hear anything further about it at this time." The matter was not raised again and no proffer of Swimm's testimony was made. Given these facts, we doubt that there was an issue raised at the trial level; and, in any event, we hold that what issue there may have been was not properly preserved for appellate review. See, e.g., United States v. Seidlitz, 589 F.2d 152, 160 (4th Cir.1978), cert. denied, 441 U.S. 922 (1979).


Next, Ashrue claims that the trial court erred by admitting $12,000 in cash recovered from his suitcase by Port Authority Police at the Newark International Airport on May 24, 1989. He does not challenge the seizure. Instead, he contends that the cash was irrelevant and unfairly prejudicial. We do not agree.


The record shows that Ashrue was returning from Greensboro at the time the money was recovered. It is quite a reasonable inference that the large sum of cash was proceeds from the sale of illegal drugs in Greensboro as part of the ongoing drug conspiracy alleged in the indictment. Thus, we do not think that the trial court abused its discretion by allowing the cash to be admitted into evidence. See United States v. Zandi, 769 F.2d 229, 237 (4th Cir.1985).


Ashrue's additional claim, that the trial court improperly denied his severance motion, is without merit. See United States v. Fraizer, 394 F.2d 258, 260 (4th Cir.), cert. denied, 393 U.S. 984 (1968). We also reject Caviness' challenge to the sufficiency of the evidence used to convict him. See Glasser v. United States, 315 U.S. 60, 80 (1942).


Accordingly, the judgments in Nos. 90-5699(L), 90-5702, 90-5703, 90-5704 are