USCA1 Opinion
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
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No. 92-2299
UNITED STATES,
Appellee,
v.
DESMOND JADUSINGH,
Defendant, Appellant.
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No. 92-2404
UNITED STATES,
Appellee,
v.
KAREN WHITAKER,
Defendant, Appellant.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gilberto Gierbolini, U.S. District Judge]
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____________________
Before
Breyer, Chief Judge,
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Selya and Stahl, Circuit Judges.
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Rachel Brill with whom Benicio Sanchez Rivera was on brief for
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appellant Jadusingh.
Luz M. Rios Rosario for appellant Whitaker.
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Desmond Jadusingh pro se.
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Jeanette Mercado Rios, Assistant United States Attorney, with
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whom Charles E. Fitzwilliam, United States Attorney and Jose A.
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Quiles-Espinosa, Senior Litigation Counsel, were on brief for
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appellee.
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January 4, 1994
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STAHL, Circuit Judge. After a three-day jury
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trial, defendants-appellants Desmond Jadusingh and Karen
Whitaker were convicted of conspiring to import approximately
two kilograms of cocaine into the customs territory of the
United States in violation of 21 U.S.C. 952 and 963.
Appellants also were convicted of conspiring to possess with
intent to distribute the same cocaine in violation of 21
U.S.C. 841(a)(1) and 846. On appeal, both raise a host of
challenges to their convictions. Finding no reversible
error, we affirm.
I.
I.
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FACTUAL BACKGROUND
FACTUAL BACKGROUND
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Because defendants challenge the sufficiency of the
evidence to support their convictions, we summarize the
evidence in the light most favorable to the government. See,
___
e.g., United States v. Mena-Robles, 4 F.3d 1026, 1029 (1st
____ _____________ ___________
Cir. 1993). Donna Marie Carr is the mother of Kimberly
Miller. In the summer of 1991, Carr was approached by
Miller's boyfriend, Desmond Jadusingh, and asked to
participate in an international drug smuggling venture.
Jadusingh wanted Carr to travel with two couriers he had
recruited, Miller and Karen Whitaker, so that Carr could
learn the operation and step in if either Miller or Whitaker
backed out. The trip was planned for January 1992.
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As the date of departure drew near, Carr approached
Pittsfield, Massachusetts, police officer Timothy Surrell
about the venture. He, in turn, alerted the Massachusetts
Drug Enforcement Agency ("MDEA") and arranged for two MDEA
agents to join him in a meeting with Carr. The group
gathered at a local restaurant, where Carr told Surrell and
the agents that she would be meeting with Jadusingh later in
the day to finalize the arrangements. Fearing that she would
not remember all of the anticipated conversation, Carr
volunteered to wear a concealed wire to the rendezvous at
Jadusingh and Miller's apartment. That evening, Carr
recorded a conversation in which Jadusingh, Whitaker and
Miller discussed their plans to travel to Puerto Rico to
purchase and import two kilograms of cocaine. Meanwhile, DEA
agents and local police, in a nearby parking lot, listened to
the live transmission of the conversation.
Two days later, on January 16, 1992, Carr drove
Jadusingh, Whitaker and Miller from Pittsfield to Jadusingh's
house on Long Island, New York, where Jadusingh gathered
money and clothing for the trip. The following morning,
Jadusingh's brother drove all four to Kennedy International
Airport, where they boarded a plane for Puerto Rico. Upon
arrival, the group, under surveillance by officers of the
federal Drug Enforcement Administration ("DEA"), traveled to
the Holiday Inn Crown Plaza in Carolina, Puerto Rico. All
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three of the women stayed in room 519 while Jadusingh, who
wanted to keep his distance from the women, stayed in room
309, which was registered to a Karen Bailey.1 Whitaker and
Carr were instructed by Jadusingh not to mention his name in
public and to contact him only by phone. They were provided
a telephone credit card number to charge calls as needed.
For the most part, Jadusingh rationed out instructions and
money through Miller on an as-needed basis. He also demanded
receipts for all expenses.
Shortly after arriving in Puerto Rico, the group
was informed by its drug contact, Etlyn, that there was an
unexpected change of plans. Jadusingh's cocaine had not been
unloaded in Puerto Rico as expected, and would have to be
picked up in Curacao.2 While Jadusingh remained in Puerto
Rico, the three women, accompanied by surveilling undercover
DEA agents, traveled to Curacao to pick up the cocaine. Once
there, Miller met with a man known only as Junior and
exchanged $5800 of Jadusingh's money for approximately two
kilograms of cocaine. In an attempt to compensate for the
unplanned detour, Junior promised an additional two kilograms
of cocaine and instructed the women to change hotels and
await delivery.
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1. Karen Whitaker is also known as Karen Bailey.
2. Curacao is the main island of the Netherlands Antilles,
off the northwest coast of Venezuela.
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Meanwhile, Miller and Whitaker purchased razor
blades, plastic baggies, tape and girdles. With the help of
Carr, the two women divided and packed the cocaine according
to Jadusingh's instructions. Jadusingh, who was in frequent
phone contact with his couriers, directed them to bring the
cocaine back to the United States by way of St. Martin and
St. Thomas. According to Jadusingh, smuggling cocaine
through customs in St. Thomas was easier than through customs
in Puerto Rico. When Jadusingh subsequently discovered that
he could not fly to St. Thomas without a passport, however,
he told the women to abandon Junior's additional delivery and
return immediately to the Holiday Inn in Puerto Rico.
On January 23, 1992, Miller and Whitaker taped the
baggies containing the cocaine to their stomachs and further
secured the contraband with the girdles. Together with Carr,
they boarded a plane bound for Aruba. After spending the
night in Aruba, Miller and Whitaker again secured the cocaine
to their bodies and boarded a plane for Puerto Rico.
Meanwhile, at Puerto Rico's Luis Munoz Marin International
Airport, Senior Customs Inspector Sonia Maldonado was alerted
by DEA agents that two persons would be arriving from Aruba
with contraband. Maldonado, who was not told which
passengers would be carrying the drugs, became suspicious of
Whitaker and Miller because they were wearing bulky winter
jackets on what she described as a particularly hot day. A
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personal search of Whitaker by Maldonado and of Miller by
Senior Customs Inspector Maria Esquilin uncovered
approximately two kilograms of a concealed white powder which
was field tested and found to be cocaine. After completing
the search, Maldonado delivered Whitaker to DEA agent Eric
Johnson. Jadusingh was arrested at the Holiday Inn later
that day.
On February 5, 1992, a grand jury returned a two-
count indictment against Jadusingh, Miller and Whitaker.
Count one charged the defendants with conspiracy to import
cocaine from Aruba to the United States in violation of 21
U.S.C. 952 and 963. Count two charged the defendants with
conspiracy to possess with intent to distribute the same
cocaine in violation of 21 U.S.C. 841(a)(1) and 846. The
defendants pled not guilty at their arraignment. Jadusingh
and Whitaker were tried without Miller, who fled after being
released on bail and was later arrested and tried separately.
Carr was the government's lead witness at the trial.
Jadusingh and Whitaker were convicted on both conspiracy
counts.
II.
II.
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DISCUSSION
DISCUSSION
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On appeal, Jadusingh and Whitaker together
primarily argue: (1) the court erred in allowing Donna Carr
to testify; (2) the court impermissibly admitted an audiotape
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into evidence; and (3) the court erred in denying their
respective Rule 29 motions for acquittal.3 Jadusingh
further contends 1) that the district court improperly
enhanced his sentence, and 2) that he was denied effective
assistance of counsel.4 We discuss each argument in turn.
A. Donna Carr
A. Donna Carr
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Jadusingh and Whitaker argue that the district
court erred in allowing Donna Carr, the government's
confidential informant and lead witness, to testify.
Specifically, the defendants claim (1) that the court should
have excluded Carr's testimony because the government failed
to disclose Carr's criminal history in violation of Brady v.
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Maryland, 373 U.S. 83 (1963); and (2) that the trial judge
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precluded Jadusingh's attorney from effectively cross-
examining Carr. We find both of these arguments to be
without merit.
1. Brady Violations
1. Brady Violations
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In Brady, the Supreme Court held that "the
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suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence
is material either to guilt or to punishment, irrespective of
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3. Pursuant to Fed. R. Crim. P. 29, "The court on motion of
a defendant or of its own motion shall order the entry of
judgment of acquittal . . . if the evidence is insufficient
to sustain a conviction . . . ."
4. Jadusingh makes his ineffective assistance of counsel
claim in a supplemental brief he filed pro se.
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the good faith or bad faith of the prosecution." Id. at 87.
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The purpose of the Brady rule is "to prohibit the prosecution
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from intentionally withholding `evidence favorable to the
accused that, if suppressed, would deprive the defendant of a
fair trail.'" United States v. Valencia-Lucena, 925 F.2d
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506, 514 (1st Cir. 1991)(quoting United States v. Bagley, 473
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U.S. 667, 675 (1985)). The rule is not, however, intended to
"`displace the adversary system as the primary means by which
truth is uncovered.'" Id. (quoting Bagley, 473 U.S. at 675).
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Here, there was no Brady violation. Although the
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government did not disclose Carr's 1978 misdemeanor drug
conviction until just before the start of the first day of
trial, it is uncontested that the government did not actually
learn of this conviction until that same day.5 Moreover,
Carr's other past substance abuse and outstanding traffic
violations were fully disclosed during the direct and cross-
examination of Carr at trial. Given this full disclosure of
Carr's background by the government, we are at a loss to
comprehend defendant's argument that the government committed
a Brady violation.6 See id. at 514 (government failure to
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5. We further note that defendants, although knowing about
the 1978 conviction, did not raise it at trial.
6. Jadusingh and Whitaker also cursorily argue that the
government knowingly allowed Carr to present false testimony
to the jury. See United States v. Wallach, 935 F.2d 445 (2d
___ _____________ _______
Cir. 1991)(reversing conviction where government knowingly
allowed star witness to perjure himself). Having carefully
reviewed all of the alleged "inconsistencies" adduced in
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turn over evidence of confidential informant's drug use was
not Brady violation where issue was fully revealed at trial).
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2. Cross Examination
2. Cross Examination
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Jadusingh next argues that the trial judge unfairly
limited the scope of his cross-examination of Carr. In
support of this argument, however, Jadusingh offers only the
following colloquy between his lawyer and Carr:
Q. After 1985 how many warrants for
your arrest did you have?
A. Five.
Q. You had five arrest warrants
pending, you never have stated that?
[Government]: Objection, Your Honor.
The Court: Sustained.
After the trial court sustained the government's objection,
Jadusingh's attorney neither attempted to reformulate his
query, nor asked the trial judge for a clarification of his
ruling. Instead, the attorney wholly abandoned this
particular line of questioning of Carr, and moved on to an
unrelated topic.
When challenging an exclusionary ruling like the
one before us, the aggrieved party must show 1) that a
substantial right was affected, and 2) that the "substance of
the evidence [sought to be introduced] was made known to the
court by offer or was apparent from the context within which
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support of this argument, however, we find it to be baseless.
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questions were asked." Fed. R. Evid. 103 (a) (2). In the
absence of this minimal showing, our review is limited to
"plain error." Fed. R. Evid. 103(d). In order to show plain
error, the complaining party must demonstrate "that justice
has miscarried or that the trial's basic fairness has been
compromised." United States v. Hadfield, 918 F.2d 987, 995
_____________ ________
(1st Cir. 1990), cert. denied, 111 S. Ct. 2062 (1991). We
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find no such error here.
We begin by noting that the question posed by
Jadusingh's counsel at trial related solely to Carr's arrest
warrants after 1985. The only evidence in the record
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regarding Carr's criminal history for this time period is her
testimony on direct examination that she had pending traffic
violations. Nothing in the record remotely intimates that
further cross-examination on this subject would have
uncovered evidence of other wrong-doing on the part of Carr
or would have been of any value to Jadusingh. Nor has
Jadusingh offered any information on appeal tending to show
that further cross-examination on this subject was warranted.
Further, it is not apparent from the record that
the district court intended to restrict Jadusingh's
substantive inquiry into Carr's outstanding warrants. It is
equally plausible that the government objected to the
argumentative tone of the question. Thus, we cannot say that
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the fairness of Jadusingh's trial was affected by the
district court's restriction of Jadusingh's cross-examination
of Carr.7
B. Admission of Tape Recording
B. Admission of Tape Recording
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Jadusingh and Whitaker next argue that it was error
for the court to permit the jury to listen to the audiotape
of the meeting between Carr, Jadusingh, Whitaker and Miller
at Jadusingh and Miller's apartment. In so doing, they
contend that the trial court should have excluded the tape
because it was inaudible. Jadusingh further argues that he
was prejudiced by the prosecutor's reference to the substance
of the tape in her closing remarks. We disagree.
1. Audibility and Admission of the Tape
1. Audibility and Admission of the Tape
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The decision to admit or exclude an audiotape rests
with the trial judge, who must decide "whether `the inaudible
parts are so substantial as to make the rest [of the tape]
more misleading than helpful.'" United States v. Font-
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7. Jadusingh also charges that the district court's ruling
violated his right to confront Carr in violation of the Sixth
Amendment. We fail to see the merit of this argument. A
criminal defendant's Sixth Amendment right to confront
witnesses against him/her is not absolute. It may, of
course, be violated when the defendant is prohibited from
engaging in cross-examination which is not repetitive,
harassing or otherwise improper, but, rather, is designed to
show a "prototypical form of bias on the part of the witness
and thereby to expose to the jury information on the
witness's reliability." United States v. Osorio, 929 F.2d
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753, 759 (1st Cir. 1991). Here, the question posed by
Jadusingh's counsel was argumentative and, therefore,
properly excluded as improper cross-examination. See id. at
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760.
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Ramirez, 944 F.2d 42, 47 (1st Cir. 1991) (quoting United
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States v. Carbone, 798 F.2d 21, 24 (1st Cir. 1986)), cert.
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denied, 112 S. Ct. 954 (1992). As we have held on numerous
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occasions, a trial judge's ruling on the admission of
recordings is afforded "broad discretion," even where
portions of the taped conversation are unintelligible. See,
___
e.g., Font-Ramirez, 944 F.2d at 47.
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We have listened to the tape and conclude that the
district court acted within its discretion in ruling that the
tape as a whole was not more misleading than helpful.
Although much of what Jadusingh and Whitaker say is drowned
out by intermittent television noise, Carr's words are easily
understandable as she repeatedly paraphrases statements made
by each defendant to his or her discernable approval.
Furthermore, Carr's audible questions regarding money, travel
arrangements and customs are addressed to, and answered by,
Jadusingh, thereby corroborating much of Carr's direct
testimony that Jadusingh was in control of the overall
venture. See id. We therefore affirm the district court's
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admission of this tape.8
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8. Jadusingh also argues that the tape should have been
excluded because the government neither provided a written
transcript nor established a chain of custody. As to the
first of these arguments, it is established that "a
transcript is not a prerequisite for the admission of
recorded conversations." United States v. Panzardi-Lespier,
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918 F.2d 313, 319 (1st Cir. 1990). As to the second
argument, we agree with the Second Circuit that, once the
government has established both authenticity and accuracy,
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2. Prosecutorial Misconduct
2. Prosecutorial Misconduct
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Jadusingh argues that he was prejudiced by the
prosecutor's substantive reference to the audiotape in her
closing remarks. More specifically, Jadusingh objects to
references made by the prosecutor to the jury that statements
allegedly made by Jadusingh were audible and that the jury
would be able to hear Jadusingh "speaking about being
watchful for dogs that would be sniffing" at the airport.
Jadusingh, however, failed to object to this reference at
trial so, once again, we review for plain error. See
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Hadfield, 918 F.2d at 995.
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Even if we were to assume that the prosecutor's
reference to the tape was erroneous, the reference would not
constitute plain error. First of all, the trial court
provided the jury with a limiting instruction directing them
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sufficient foundation has been laid for the tape's admission
without proof of chain-of-custody. See United States v.
___ ______________
Steinberg, 551 F.2d 510, 515 (2d Cir. 1977). We note that
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the government, through Carr, properly authenticated the tape
and identified the voices. See Font-Ramirez, 944 F.2d at 47.
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Whitaker argues that the court erred in allowing the
jury to listen to the tape because it was never formally
moved into evidence. Because Whitaker failed to raise this
objection below, we review this argument under a plainly
erroneous standard. See United States v. Brennan, 994 F.2d
___ _____________ _______
918, 925 (1st Cir. 1993). We fail to see how the
government's failure to move the tape formally into evidence
affected the fundamental fairness of the trial where 1) the
government provided the proper foundation to admit the tape,
2) the trial court ruled that the government could play the
tape for the jury, and 3) the tape was docketed as Government
Exhibit 17. We therefore reject this argument.
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to disregard inaudible portions of the tape. Moreover, Carr
testified, independently of the tape, that Jadusingh had, in
fact, warned Carr, Whitaker and Miller of customs dogs.
Thus, the very evidence which Jadusingh now objects to had
been presented to the jury by an independent source.
Finally, an independent review persuades us that evidence of
the dog warnings forms a very small and inconsequential piece
of the overall evidence which supports Jadusingh's
conviction. Accordingly, we find no plain error in the
government's reference to Jadusingh's inaudible statements on
the tape.
C. Sufficiency of the Evidence of Conspiracy
C. Sufficiency of the Evidence of Conspiracy
_____________________________________________
Both Jadusingh and Whitaker argue that there was
insufficient evidence to support their convictions for
conspiring to import cocaine into the United States from
Aruba in violation of 21 U.S.C. 952 and 963,9 and
conspiring to possess with intent to distribute the same
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9. 21 U.S.C. 952 provides in relevant part that it "shall
be unlawful to import into the customs territory of the
United States from any place outside thereof . . . [a]
controlled substance . . . ." Under 21 U.S.C. 963, any
person who conspires to commit the crime above, "shall be
subject to the same penalties as those prescribed for the
offense."
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cocaine in violation of 21 U.S.C. 841(a)(1) and 846.10
This argument need not detain us long.
When reviewing a sufficiency of the evidence
challenge, we examine the evidence in the light most
favorable to the government and affirm convictions where any
rational juror could have found guilt beyond a reasonable
doubt. See United States v. Vavlitis, No. 93-1229, slip op.
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at 15 (1st Cir. Nov. 19, 1993). Conspiracy convictions
require proof that the defendants entered into an agreement
with one another to commit a crime. See United States v.
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Concemi, 957 F.2d 942, 950 (1st Cir. 1992). We note that the
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government may satisfy this burden by direct and/or
circumstantial evidence. Valencia-Lucena, 925 F.2d at 512.
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Given that the admission of Carr's testimony and
the audiotape was not erroneous, Jadusingh's contention that
the government failed to produce evidence sufficient to
support his convictions is meritless. There is a plethora of
direct evidence in the record showing that Jadusingh 1)
planned the trip to import the cocaine, 2) recruited and
controlled Carr, Whitaker and Miller, and 3) provided the
travel money and the funds to purchase the cocaine.
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10. 21 U.S.C. 841(a)(1) provides in relevant part that "it
shall be unlawful for any person knowingly or intentionally"
to "possess with intent to . . . distribute . . . a
controlled substance." Under 21 U.S.C. 846, any person who
conspires to commit the offense described above, "shall be
subject to the same penalties as those prescribed for the
offense."
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Moreover, DEA agents observed Jadusingh traveling to Puerto
Rico. They listened in on at least one telephone
conversation between Jadusingh and Carr while Carr, Whitaker
and Miller were in Curacao. And they also observed Jadusingh
attempting to purchase an airplane ticket, thereby
corroborating Carr's testimony that Jadusingh wanted to meet
the women in St. Thomas. Moreover, additional evidence shows
that Jadusingh promised to pay the women $1000 each for their
efforts and that the women were instructed to deliver cocaine
valued at over three hundred thousand dollars ($300,000)
wholesale to Jadusingh. Thus, the evidence produced by the
government supports a reasonable inference that Jadusingh 1)
agreed with Whitaker and Miller to commit the charged
offenses; 2) had constructive possession of cocaine; 3)
intended to distribute the cocaine, see United States v.
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Vargas, 945 F.2d 426, 428-29 (1st Cir. 1991) (holding that
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one kilogram of cocaine was "large enough to support a fair
jury inference that it was not intended merely for personal
consumption"), and 4) controlled those who actually imported
the cocaine into the United States from Aruba.
Whitaker's sufficiency argument is based mainly on
her claim that the Customs Inspector who searched her at the
Marin Airport in San Juan could not identify her at
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trial.11 We fail to discern any merit in this argument.
Whitaker was identified in court by Carr as one of the
coconspirators who planned the trip, handled the money,
divided up the cocaine, and attempted to smuggle the drug
into the United States from Aruba. Whitaker also was
identified in court by DEA agent Johnson, who received
custody of Whitaker from Maldonado at the airport, as one of
two women who were apprehended deplaning a flight from Aruba
with cocaine strapped to their stomachs. In light of the
abundance of evidence supporting the convictions of both
Jadusingh and Whitaker, we decline the invitation to upset
the jury's findings of their respective guilt as to either
count.
D. Sentencing Enhancements
D. Sentencing Enhancements
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Jadusingh contends that the evidence presented was
insufficient to uphold the trial court's two-level sentencing
enhancement for his organizational role in the
conspiracy.12 Again, we disagree.
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11. Whitaker also argues at length that Carr was untruthful.
On appeal, it is not within our purview to assess the
credibility of trial witnesses. See Valencia-Lucena, 925
___ _______________
F.2d at 512.
12. Under U.S.S.G. 3B1.1, a sentencing judge may increase
a base offense level by two if the crime involved two or more
people and the defendant "was an organizer, leader, manager,
or supervisor" of the criminal activity. Factors to be
considered include "the exercise of decision making
authority, the nature of participation in the commission of
the offense, the recruitment of accomplices, the claimed
right to a larger share of the fruits of the crime, the
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An enhancement under U.S.S.G. 3B1.1 is
appropriate if the government has demonstrated that the
defendant "`exercised some degree of control over others
involved in the commission of the crime.'" United States v.
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De La Cruz, 996 F.2d 1307, 1315 (1st Cir.)(quoting United
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States v. Fuller, 897 F.2d 1217 (1st Cir. 1990)), cert.
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denied, 114 S. Ct. 356 (1993). We review role-in-the-offense
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rulings for clear error. United States v. Cronin, 990 F.2d
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663, 665 (1st Cir. 1993).
Here, the sentencing judge based his decision to
enhance Jadusingh's sentence upon a reading of the pre-
sentence report, and his notes from, and memory of, the
trial. The district judge was afforded ample opportunity to
ascertain the credibility of Donna Carr as she testified to
Jadusingh's control over the drug operation. The record is
replete with testimony from Carr that Jadusingh planned and
financed the trips to Puerto Rico and Curacao. According to
Carr, Jadusingh directed the women's actions. He showed them
1) how to divide up and package the cocaine, 2) how to strap
it to their bodies, and 3) how to avoid detection at customs.
Jadusingh also provided the money to pay for the trip and the
drugs. This evidence clearly supports a finding that
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degree of participation in planning or organizing the
offense, the nature and scope of the illegal activity, and
the degree of control and authority exercised over others."
U.S.S.G. 3B1.1, comment. (n.3).
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Jadusingh was the "mastermind behind this offense."
Accordingly, we find no clear error in the trial judge's two-
level enhancement of Jadusingh's sentence.
E. Ineffective Assistance of Counsel
E. Ineffective Assistance of Counsel
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In his supplemental pro se brief, Jadusingh urges
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this court to consider his claim of ineffective assistance of
counsel. Generally, we will not address such a claim raised
for the first time on direct appeal unless "the critical
facts are not in dispute and a sufficiently developed record
exists." United States v. Daniels, 3 F.3d 25, 26-27 (1st
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Cir. 1993). The proper forum for factbound issues of
ineffective assistance of counsel is in a collateral
proceeding under 28 U.S.C. 2255. Id. at 27.
___
The record does not reflect that this issue was
raised below. Furthermore, the laundry list of counsel's
alleged failures, including the failure to call witnesses, to
voir dire the jury, to request a severance and to strike
apparent contradictory statements of the government's
confidential informant, are sufficiently factbound to
preclude our review on the record before us. See id.
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Accordingly, we decline the invitation to review this claim.
III.
III.
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CONCLUSION
CONCLUSION
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The judgment below is affirmed, without prejudice
to defendant Jadusingh's right to pursue his ineffective
assistance of counsel claim in a collateral proceeding under
28 U.S.C. 2255.
Affirmed.
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