United States of America, Cross-Appellant v. Alberto Gessa, Cross-Appellee

971 F.2d 1257
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 7, 1992
Docket90-5825, 90-5903
StatusPublished
Cited by152 cases

This text of 971 F.2d 1257 (United States of America, Cross-Appellant v. Alberto Gessa, Cross-Appellee) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States of America, Cross-Appellant v. Alberto Gessa, Cross-Appellee, 971 F.2d 1257 (6th Cir. 1992).

Opinions

CONTIE, Senior Circuit Judge.

Defendant-appellant, Alberto Gessa, appeals his conviction and sentence for conspiracy to distribute and possess with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and for distribution of cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The United States cross-appeals from the district court’s alleged misapplication of the United States Sentencing Guidelines (U.S.S.G.).

I. .

In February 1989, defendant, Alberto Gessa, was charged on two counts of a twenty-three count, nineteen-defendant indictment, alleging conspiracy to distribute and distribution of cocaine in the Middle District of Tennessee in or about the spring and summer of 1988. All of defendant’s co-defendants either pled guilty or were tried and convicted in May and June of 1989 under a different prosecutor. Defendant was not tried at the same time because he had become a fugitive and was not apprehended until September 1989.

During defendant’s trial in February 1990, it was established that his brother, Alex Gessa, was the ringleader in a drug trafficking ring that transported cocaine from Florida to Tennessee and that his main couriers included defendant, Sergio Alarcon, Manuel Perez, Louis Garcia, and Juan Perez. The bookkeeper of the drug organization was Camille Kohler, Alex Ges-sa’s former girlfriend, who testified against all of the co-defendants on behalf of the government.

In her debriefing for the first trial, Camille Kohler had told the prosecutor that there existed a scheme to import 2500 kilograms of cocaine from Colombia by air dropping the cocaine in the ocean and picking it up by boat, but the prosecutor in the first trial did not believe there was sufficient evidence of a foreign importation scheme and did not introduce any evidence about it against defendant Gessa’s co-defendants.

The prosecutor in defendant’s trial decided to introduce evidence of a 2500 kilogram importation scheme against defendant because it found two witnesses, Jesus Fleitas and Eli Palmer, who agreed to testify that on two prior occasions, defendant had used a boat to import cocaine into Florida from Green Turtle Cay in the Grand Bahamas.

At defendant’s trial, Camille Kohler testified that a 2500 kilogram importation scheme existed, but three other witnesses, Alex Gessa, Sergio Alarcon and Barbara [1260]*1260Alarcon, stated that the alleged scheme was a ruse developed to deceive Camille Kohler about the real reason her boyfriend, Alex Gessa, was in Florida, which was to see another girlfriend, Laurie Becak. Testimony from Kohler and others disclosed that during the time period between the late spring and November of 1988, the organization of Alex Gessa had obtained approximately 2.5 to 3 kilograms of cocaine from defendant for distribution in the Middle District of Tennessee. On February 13, 1990, defendant was convicted as charged on one substantive count and one conspiracy count.

A final sentencing hearing was held on June 11, 1990. The district court stated that it believed a 2500 kilogram foreign importation conspiracy had been established by a preponderance of the evidence. The court credited Camille Kohler’s testimony over that of the other co-conspirators that there existed a definite scheme, which was not a ruse, to obtain 2500 kilograms of cocaine from Colombia by air drop and boat lift. The district court also credited Koh-ler’s testimony that she had wired large amounts of money from Tennessee to Alex Gessa, defendant’s brother, who was in Ft. Lauderdale, and had arranged for the transportation of Alex Gessa’s boat from Nashville to Florida. The district court, on the other hand, indicated that the scheme was too vague and tenuous to use for sentencing purposes. The court also objected to sentences based merely on “conversational cocaine” when the transaction that was the object of the conspiracy had never been completed. The district court rejected the recommendation in defendant’s pre-sen-tence report that his base offense level include the 2500 kilogram amount, and instead sentenced defendant on the basis of 2.5 to 3 kilograms of cocaine.1 The base offense level for 2.5 to 3 kilograms at the time defendant was sentenced was 28. The district court added two points for obstruction of justice, which coupled with a criminal history category of I, resulted in a sentencing range from 97 to 121 months of incarceration. Without explaining its reasons for doing so, the district court departed downward by one month from the applicable Guideline range and sentenced defendant to 96 months in prison to be followed by four years supervised release. The court also imposed a $55,000 fine and a $100 special assessment.

Defendant timely appealed his conviction and sentence. The United States cross-appealed from the district court’s alleged misapplication of the United States Sentencing Guidelines.

This matter is now before this court in an en banc proceeding.

II.

Defendant objected to the admission of the testimony of Camille Kohler and other co-defendants, arguing that their statements about what Alex Gessa had told them were narrative declarations and not in furtherance of the conspiracy.

The district court overruled defendant’s objections pursuant to Fed. R.Evid. 801(d)(2)(E).2 Although it is often stated that we apply an abuse of discretion standard to a district court’s evidentiary rulings,3 we believe this statement sweeps too broadly in regard to Rule 801(d)(2)(E), [1261]*1261which requires that specific factual determinations and legal conclusions be made in order for the evidence to be admitted. In order to admit the statement of a co-conspirator under Fed.E.Evid. 801(d)(2)(E), it must first be determined that the conspiracy existed, that the defendant was a member of the conspiracy, and that the co-conspirator’s statements were made “in furtherance of the conspiracy.” United States v. Vinson, 606 F.2d 149, 152 (6th Cir.1979), cert. denied, 444 U.S. 1074, 100 S.Ct. 1020, 62 L.Ed.2d 756 (1980). These are factual determinations governed by the clearly erroneous standard of review. See Mahoney v. United States, 831 F.2d 641, 645 (6th Cir.1987), cert. denied, 486 U.S. 1054, 108 S.Ct. 2820, 100 L.Ed.2d 922 (1988).

In the present case, the district court’s determinations that the government had proven the existence of a conspiracy by a preponderance of the evidence, that defendant was a member of the conspiracy, and that the statements, which Alex Gessa had made to others attributing 2.5 to 3 kilos to defendant, were made in “furtherance of the conspiracy” are not clearly erroneous. United States v. Rios, 842 F.2d 868

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Frank Tatum
462 F. App'x 602 (Sixth Circuit, 2012)
United States v. Jason Qualls
447 F. App'x 698 (Sixth Circuit, 2011)
United States v. Dennis Delaney
443 F. App'x 122 (Sixth Circuit, 2011)
United States v. Vassar
346 F. App'x 17 (Sixth Circuit, 2009)
United States v. Young
Sixth Circuit, 2009
United States v. Henderson
307 F. App'x 970 (Sixth Circuit, 2009)
United States v. Hershel McCaleb
302 F. App'x 410 (Sixth Circuit, 2008)
United States v. Childs
539 F.3d 552 (Sixth Circuit, 2008)
United States v. Sims
Sixth Circuit, 2008
United States v. Love
254 F. App'x 511 (Sixth Circuit, 2007)
United States v. List
200 F. App'x 535 (Sixth Circuit, 2006)
United States v. Fraser
Sixth Circuit, 2006
United States v. Payne
Sixth Circuit, 2006
United States v. Toro
133 F. App'x 181 (Sixth Circuit, 2005)
United States v. Darwich
Sixth Circuit, 2003
United States v. Mike Darwich
337 F.3d 645 (Sixth Circuit, 2003)
Sampson v. City of Xenia
108 F. Supp. 2d 821 (S.D. Ohio, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
971 F.2d 1257, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-of-america-cross-appellant-v-alberto-gessa-cross-appellee-ca6-1992.