United States v. Teodoro Ariza-Ibarra, United States of America v. Alvaro Rodriguez

651 F.2d 2
CourtCourt of Appeals for the First Circuit
DecidedJune 5, 1981
Docket80-1112, 80-1113
StatusPublished
Cited by57 cases

This text of 651 F.2d 2 (United States v. Teodoro Ariza-Ibarra, United States of America v. Alvaro Rodriguez) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Teodoro Ariza-Ibarra, United States of America v. Alvaro Rodriguez, 651 F.2d 2 (1st Cir. 1981).

Opinions

KEETON, District Judge.

Following a new trial ordered by this court in United States v. Ariza-Ibarra, 605 F.2d 1216 (1st Cir. 1979) (“Ariza I”), defendants Teodoro Ariza-Ibarra (“Ariza”) and Alvaro Rodriguez (“Rodriguez”) were again convicted by a jury of conspiracy to import 50,000 pounds of marijuana and 25 kilos of cocaine from Colombia into the United States in violation of 21 U.S.C. §§ 952(a), 963. On this appeal, we are required to address an issue left open in Ariza I, 605 F.2d at 1219-20 n.3, concerning the scope of the government’s duty under Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), and United States v. Davila Williams, 496 F.2d 378 (1st Cir. 1974), to provide a defendant with accurate information concerning the whereabouts of a confidential informant.

The government’s theory of the case remained the same at the second trial as in Ariza I:

As portrayed by the prosecution, Ariza was a Colombia-based supplier of drugs, while Rodriguez — who dealt in vessels suitable for drug smuggling — was one of his lieutenants. Both defendants were arrested in the afternoon of January 31, 1978 at the international airport in San Juan. Their capture followed an undercover operation in which Drug Enforcement Administration (DEA) agents and an informer posed as would-be drug purchasers. Meeting with defendants on January 30 and 31, the undercover operatives made final arrangements to procure from them a shipment of Colombian cocaine, with a marijuana deal to follow. Before any part of the transaction was consummated defendants went to the airport; fearing that they were planning to depart, DEA agents arrested them. Defendants were not charged with commission of any substantive offense, but rather with the conspiracy to import that was allegedly hatched in the presence of the undercover operatives.

605 F.2d at 1218-19.

The prosecution’s evidence at the second trial was in all relevant respects identical to that summarized in Ariza I, id. at 1219-20. We state only that the government’s case was largely dependent on the testimony of Fortunato Jorge, the DEA agent who, along with an informant named Alberto Larain Maestre (“Larain”), negotiated the agreement to purchase drugs from the defendants that constituted the alleged conspiracy. At trial, Jorge testified that he learned about Ariza from Larain in November 1977. Shortly thereafter, the two men began a series of telephone calls to Ariza, which were taped by Jorge and placed in evidence at trial. None of the taped conversations included any express reference to drugs. Instead, there were “[gjuarded references to ‘coffee’ and ‘furniture’ [which] could well have been cover words for other substances, and the conversations were so deliberately cryptic as to suggest illicit rather than ordinary commercial dealings.” Id. at 1219.

In addition, Jorge testified concerning several face-to-face meetings with the de[5]*5fendants, at which both he and Larain were present, where an agreement was reached that Ariza, with Rodriguez’ assistance, would supply the men with 25 kilos of cocaine and 50,000 pounds of marijuana. None of the face-to-face meetings with the defendants was recorded. As was true in Ariza I, at the second trial “[i]t was Jorge’s testimony of what defendants said at the later, unrecorded, meetings that provided the government with its basic case.” Id.1

Larain was not called as a witness by the government or the defense at either trial. Appellants argue that at the second trial, the government violated its duty under Davila Williams by failing either to furnish the defense with accurate information concerning the informant’s whereabouts or to exercise reasonable diligence under the circumstances to locate him. In addition, they assert that the government deliberately withheld information concerning Larain’s whereabouts. Finally, appellants argue that the district court erred in denying their request for a missing witness instruction. To set the context for evaluating appellants’ contentions, we describe the proceedings occurring before and during the second trial in some detail.

II.

A. PROCEEDINGS BEFORE THE SECOND TRIAL

On September 30, 1979, in Ariza I, this court reversed defendants’ convictions and remanded the case for a new trial. On November 21, 1979, a pretrial conference was held before Magistrate Simonpietri at which an Assistant United States Attorney and Rodriguez’ lawyer were present.2 In his memorandum on the conference, dated November 27,1979, the magistrate reported that “it was agreed that the Government will inform the defendants, by not later than November 29, 1979, [of] the present status of its informant.” No transcript of the pretrial conference before the magistrate is in the record. However, the parties do not dispute that at the conference, defense counsel announced that he wished to interview Larain, and the Assistant United States Attorney responded that Larain was no longer active as an informant and that he did not know where Larain was.

On December 3, 1979 Rodriguez’ attorney, who was then in New York, wrote to the prosecutor in charge of the case, to discuss various pretrial matters, including Larain’s whereabouts:

In the event that you have been unable to locate Larain, we would appreciate information in this behalf and that you make it available to us. When we last appeared before the Magistrate in the instant case, you represented that Larain was no longer in the service of the Drug Enforcement Administration and that his whereabouts were unknown to you. If this situation has changed, we would appreciate, of course, hearing from you.

This letter was received by the U.S. Attorney’s office in San Juan on December 6, 1979.

The government did not furnish the defense with any information concerning La-rain’s whereabouts, in response to either the magistrate’s memorandum or defense counsel’s letter, before December 10, 1979, the date on which the second trial commenced.

B. THE Petrozziello HEARING

On December 10, 1979, after impaneling the jury, the district court recessed the trial and convened a hearing on the admissibility of certain statements allegedly made by two of the defendants’ purported co-con[6]*6spirators. See United States v. Petrozziello, 548 F.2d 20 (1st Cir. 1977).3 The court also agreed to take up the issue of Larain’s availability at the Petrozziello hearing.4

After the hearing began, the government furnished defense counsel with several documents bearing on Larain’s movements during the period between the first and second trial.

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Bluebook (online)
651 F.2d 2, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-teodoro-ariza-ibarra-united-states-of-america-v-alvaro-ca1-1981.