United States v. Meros

866 F.2d 1304, 1989 WL 11192
Court of Appeals for the Eleventh Circuit·Decided February 13, 1989·No. No. 85-3774·Published·Cited by 68 cases

Opinion

PER CURIAM:

I.

Between 1976 and 1984, the appellants in this case participated in a series of attempts to smuggle large quantities of marijuana into the United States from Colombia. The “kingpins” behind these ventures included George Meros, an attorney who supplied financial backing for the ventures, and the Papolos brothers, who organized the distribution of the smuggled marijuana. In addition to financing the smuggling operations, Meros also provided his associates with individual financial assistance, structuring cash transactions so as to avoid the filing of Currency Transaction Reports, and establishing Swiss bank accounts to conceal the profits of the smuggling operations.

After a lengthy trial, the jury found the participants in these ventures guilty of various violations against the anti-racketeering and narcotics laws of the United States.1 In addition, the jury found Meros and Robert Papolos guilty of various mon[1307] ey laundering offenses.2 Appellants now bring a host of challenges to their convictions. Three of the appellants’ contentions raise issues that have some precedential value; we discuss them in turn.3

II.

A.

Appellants John Frazier, Michael Ferren-tino, Linda Ferrentino, and Stephen Papo-los argue that they are entitled to a new trial on grounds that the prosecutor allegedly violated his obligation to disclose impeaching evidence regarding one of his witnesses and knowingly permitted that witness to testify falsely at trial. The facts pertinent to this claim are as follows.

Alexander Biscuiti, a co-conspirator who had entered into a plea agreement with the Government and had been sentenced to prison by the district court, was the Government’s principal witness in support of its claim that appellants imported 80,000 pounds of marijuana from Colombia in July 1981. Prior to trial, appellants moved the court to compel the prosecutor to disclose all information of an impeaching nature regarding Biscuiti and all inducements or promises the Government made to him in return for his testimony. The court ordered the Government to supply the requested information to the extent required by the Supreme Court’s holdings in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). The prosecutor responded by apprising appellants of the existence of a transcript of Biscuiti’s September 7, 1984 bail hearing. At this hearing, Biscuiti sought to reduce the one and one-half million dollar bond that the court had previously required him to post. The Government, however, contended that the court should deny Biscuiti’s motion to reduce the amount of his bond on the grounds that Biscuiti associated with a violent crowd and that he had been reluctant to surrender himself to the authorities upon the issuance of a warrant for his arrest. The Government also gave appellants an unredacted copy of a tape-recorded phone conversation between Biscuiti and his associate, Joey Cam, who had since been the victim of a “gangland-style murder.”

Before Biscuiti was called to the stand at trial, appellants learned that Biscuiti was a Government witness in another criminal case, pending in the Northern District of Georgia, and that he had recently been indicted in a drug prosecution in the Eastern District of Pennsylvania. Appellants’ counsel informed the court of these matters and moved the court to compel the Government to make available all information relating to the Georgia and Pennsylvania cases which would tend to impeach Biscuiti in the present case, including any negotiations or deals the Government may have made with him. In response to the court’s inquiry, the prosecutor stated that the Government had not entered into any plea agreement with Biscuiti regarding the Atlanta case, and with regard to the Pennsylvania case, he declared:

I submit to the court that any negotiations between this witness’ attorney and law enforcement or prosecutorial officials regarding another indictment in an[1308] other [jurisdiction] that has not been reduced to writing and that may or may not be in the works or in the preliminary stages is not [Brady or Giglio material]. It’s not anything in our possession and it’s, quite frankly, none of our business.

The court accordingly denied appellants’ motion on the grounds that the requested information was not in the Government’s possession for purposes of Brady and that the information was known and available to the defense.

At trial, Biscuiti testified that he had voluntarily turned himself in to the authorities upon learning of the existence of a warrant for his arrest. A few days after the conclusion of Biscuiti’s testimony and cross-examination, appellants obtained from the court reporter the transcript of Biscuiti’s bond reduction hearing, at which the Government had argued that Biscuiti’s surrender had been “reluctant.” Appellants moved the court to reopen the cross-examination of Biscuiti based on the content of the transcript of the hearing or else to declare a mistrial. The district court denied appellants’ motion on the ground that appellants had already conducted an exhaustive four-day cross-examination of Biscuiti which covered every conceivable facet of his life including the circumstances of his surrender upon learning of the warrant for his arrest.

Appellants contend that the prosecutor violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to provide the defense with evidence upon which the Government had based its arguments at the bond reduction hearing and by failing to apprise defense of alleged plea negotiations between Biscuiti and the Georgia and Pennsylvania authorities. Appellants also argue that the prosecutor violated Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), by failing to correct Biscuiti’s allegedly false testimony that he had turned himself in upon learning of the warrant for his arrest. We discuss these issues in order.

1.

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