921 F.

2d 1557

UNITED STATES of America, Plaintiff-Appellee,

v.
David CARRAZANA, Pablo Carballo, Anselmo Cosio, Carlos
Manuel Gonzalez, Jesus Garcia, Raul Z. Plasencia,
Maria Elena Plasencia, Miguel Diaz,
Defendants-Appellants.
No. 88-5557.

United States Court of Appeals,

Eleventh Circuit.
Jan. 30, 1991.

Carlos A. Rodriguez, Miami, Fla., for Carrazana.

Paul Morris, G. Richard Strafer, Stephen J. Bronis, Coral Gables, Fla., for
Cosio, Gonzalez, Carballo and R.Z. and M.E. Plasencia.
Benjamin S. Waxman, Miami, Fla., for Garcia.
Bonnie Phillips Del Corral, Miami, Fla., for Diaz.
Dexter W. Lehtinen, U.S. Atty., Stephen Schlessinger, Linda Collins
Hertz and Mayra R. Lichter, Asst. U.S. Attys., Miami, Fla., for the U.S.
Appeal from the United States District Court for the Southern District of
Florida.
Before JOHNSON and HATCHETT, Circuit Judges, and DYER, Senior
Circuit Judge.
HATCHETT, Circuit Judge.

In this multiple defendant cocaine trafficking case, we affirm the convictions.

FACTS

On March 6, 1987, Eugenio Esteban was found murdered in his automobile in

Miami, Florida. Esteban had worked at a gas station owned by Raul Plasencia.
After starting work at the station in 1984, Esteban rapidly improved his
standard of living, as evidenced by his acquisition of a $65,000 boat and a
$50,000 Mercedes-Benz automobile. Initially, the Miami Metro-Dade Police
Department's Homicide Division failed to develop any suspects.

On April 2, 1987, homicide investigator Andres Falcon received the first of

five telephone calls from an unknown tipster. Based primarily upon these calls,
which Detective Falcon and other investigators believed revealed an intimate
knowledge of the Esteban homicide and of the criminal activities of Plasencia
and his associates, the officers submitted a seventy-six page affidavit to a
Florida district court of appeals chief judge and obtained authorization to
wiretap land-line telephones located in Raul Plasencia's residence.

The tipster told Detective Falcon that he and Esteban had worked as
warehousemen and occasional distributors for an extensive cocaine trafficking
organization headed by Plasencia. According to the tipster, Esteban had been
murdered because he had failed to compensate the organization for his loss of a
hundred kilograms of cocaine with which he had been entrusted. Significantly,
the tipster stated that Esteban's killer had carried a .32 caliber semi-automatic
PPK handgun--a fact which the police had been careful to keep confidential.
The tipster also stated that "Carlito," one of Esteban's executioners, lived at
13255 N.W. 1st Lane. Detective Falcon later learned that the address as given
was inaccurate, but that an individual named Carlos Perez resided at 13253
N.W. 1st Lane. Presented with a number of photographs, an eyewitness to the
Esteban murder selected the one of Carlos Perez as the one most closely
resembling Esteban's murderer. The tipster also identified Pablo Carballo as a
principal aide to Plasencia, a fact substantiated six weeks later when the captain
of a vessel containing 2,300 pounds of cocaine was found in possession of
Carballo's cellular telephone number. Additionally, the tipster stated that
Plasencia felt secure within his own mansion and used its communications
facilities to direct the organization's narcotics activities.

Based in part upon communications intercepted over those telephones, the

detectives sought authorization to electronically tap mobile telephones used by
Plasencia and his associates allegedly for conducting criminal conversations.
On September 5, 1987, a Florida Supreme Court Justice authorized interception
of wire and oral communications occurring over Plasencia's mobile telephones.
The electronic surveillance and the investigative activities it engendered
revealed the operations of a large cocaine trafficking organization.

As a result of the investigation, the law enforcement officers concluded that

Plasencia was the leader of a criminal enterprise. Maria Elena Plasencia, Raul's
wife, was a trusted member in the conspiracy. Carlos Veccio and Carballo,
Maria's brother, acted as lieutenants in the organization. Perez, together with
Maria's brother-in-law, David Carrazana, provided security for the
organization, including counter-surveillance activity. Jesus Garcia and Orlando
Nunez acted as warehousemen, storing Plasencia's cocaine in their residences,
and delivering it as directed by Plasencia or his lieutenants. The surveillance
also unmasked customers of the organization, including Miguel Diaz, Anselmo
Cosio, and a man known only as John Doe.

On September 7, the officers intercepted a call from Diaz to Maria Elena

Plasencia requesting ten "puppies," i.e., ten kilograms of cocaine. Raul
Plasencia then called Nunez to Plasencia's house. From the house, Nunez called
Diaz and confirmed the order. Nunez returned home and later delivered the
cocaine to Diaz's house where the two met in the driveway. Plainclothes
detectives interrupted the sale, announced their identities, seized the cocaine,
and then left the scene leaving Nunez and Diaz with the belief that they had
been "ripped off" by rival drug dealers or dishonest law enforcement officers.

The officers hoped that continuing electronic surveillance would, in the

aftermath of the seizure, provide further information concerning the Plasencia
drug network. Indeed, the officers soon intercepted a number of calls between
the Plasencias, Nunez, and Veccio discussing the loss of the cocaine and the
need for caution. The officers also monitored conversations arranging a ten
kilogram cocaine sale from Plasencia and Veccio to Doe and his partner, Cosio.

On September 8, Veccio met Cosio at Veccio's restaurant. The two then drove
separately to Veccio's house and waited in the driveway. Garcia, who had
confirmed the sale with Plasencia by phone, then arrived. Cosio visually
inspected a box in Garcia's car, carried it to his car, and drove away.
Plainclothes officers stopped Cosio's car after several miles, seized the box
which contained cocaine, but again made no arrests.

10

On September 14, officers visited Garcia's home and sought consent to search
the residence. Garcia declined to permit the search. Upon their departure, the
officers saw Garcia drive his car in a frenzied manner to a rear entrance of the
house and throw some heavy bags into the trunk of the car. Garcia left in haste,
but officers stopped him several blocks away and discovered eighty-six
kilograms of cocaine in the trunk of the car.

PROCEDURAL HISTORY

11

On October 2, 1987, a grand jury returned a five-count indictment against the

appellants. The grand jury charged Raul and Maria Elena Plasencia in Count I
with operating a continuing criminal enterprise, and charged the Plasencias,
Veccio, Carballo, Carrazana, Diaz, Garcia, and Cosio in Count II with
conspiracy to distribute cocaine, and in Counts III through V with possession of
cocaine with the intent to distribute it, each possession count corresponding to
each of the three seizures.

12

The appellants (except Cosio who is without standing) moved to suppress the
fruits of the wiretaps. After conducting a lengthy evidentiary hearing, the
district court denied the motion to suppress.

13

After seven days of trial, the Plasencias, Carballo, Carrazana, Diaz, and Garcia
each entered a guilty plea to one count of possession of cocaine, preserving
their right to appeal the district court's denial of their motions to suppress the
wiretap evidence. A jury found Veccio guilty as charged and Cosio guilty on
the conspiracy count and on one substantive count.

CONTENTIONS
14

The appellants contend the district court erred in denying the motion to
suppress the wiretap evidence.

15

Cosio contends the evidence was insufficient to support his conspiracy and
possession convictions and the district court erred in denying his motion for
severance.

16

Veccio contends the district court erred in permitting the admission of

"interpretive" expert testimony and erred by instructing the jury that six of the
eight defendants pleaded guilty.

17

Raul Plasencia contends the government breached his plea agreement by

asserting a position at sentencing inconsistent with the terms of the agreement.

ISSUES
18

The issues are: (1) whether the district court erred in denying the appellants'
motion to suppress the wiretap evidence; (2) whether the evidence was
insufficient to support Cosio's convictions for conspiracy and possession; (3)
whether the district court erred in denying Cosio's motion for severance; (4)
whether the district court erred in permitting the admission of expert testimony;

(5) whether the district court erred in instructing the jury that certain defendants
had pleaded guilty during the trial; and (6) whether the government breached
its plea agreement with Raul Plasencia.
DISCUSSION
I. Motion to Suppress
19

The appellants contend that the district court erred in denying their motion to
suppress the introduction of the intercepted cellular phone conversations by
determining that: (1) Florida's highest court had lawful authority to approve the
monitoring of a mobile telephone; (2) a substantial basis for the issuance of the
initial wiretap order existed; (3) alternative investigative techniques were
unlikely to succeed and consequently electronic surveillance was necessary;
and (4) the initial authorization of a thirty-day wiretap was sufficiently justified.
A. Federal Court Order Requirement

20

Whether a federal court order is a prerequisite to the lawful interception of

communications conducted on cellular telephones is subject to plenary review.
See United States v. Alexander, 835 F.2d 1406 (11th Cir.1988) (application of
law to facts upon review of denial of suppression motion subject to de novo
review).

21

In 1968, Congress preempted the field of interception of wire and oral

communications by enacting Title III of the Omnibus Crime Control and Safe
Streets Act, Pub.L. 90-351, 82 Stat. 212 (1968) (codified at 18 U.S.C. Sec.
2510 et seq.). In 1986, Congress enacted the "Electronic Communications
Privacy Act of 1986," Pub.L. 99-508, 100 Stat. 1848 (1986) ("ECPA"). The
ECPA amended Title III to protect cellular communications from interception
without prior judicial approval.

22

A special rule accompanied the ECPA to afford those states with wiretap
statutes an opportunity to conform to the amendments. Pub.L. 99-508, Sec.
111(b). The rule states that if a state-authorized interception would be valid
without regard to the amendments, it would be deemed valid notwithstanding
the amendments, if applied within two years of October 21, 1986, and if
conducted pursuant to 18 U.S.C. Sec. 2516(2).1 Title 18 U.S.C. Sec. 2516(2)
provides in relevant part:

23 principal prosecuting attorney of any state ... if such attorney is authorized by a

The
statute of that state to make application to a state court judge ... for an order

authorizing or approving the interception of wire, oral, or electronic

communications, may apply to such judge for ... an order authorizing, or approving
the interception of wire or oral communications.
24

(West Supp.1990).

25

In 1987, Florida law did not explicitly provide for judicial authorization of the
interception of cellular communications.2 The appellants contend that the
special rule providing for a two-year grace period for states whose statutes
authorize such an interception, does not apply to the situation in Florida where
the state law neither required nor authorized an interception order for cellular
communications. The appellants conclude that the wiretap evidence is
inadmissible because the law enforcement officers failed to first obtain a
federal court order authorizing the interception of cellular telephone
conversations as required by law.

26

The appellants erroneously presume that authorization for a mobile telephone

wiretap could not have been sought from the state court because such
interceptions could arguably have been accomplished prior to the enactment of
the ECPA without any court order. The fact that mobile telephone interceptions
might lawfully have been accomplished under Florida law without court order
did not preclude the Metro-Dade officers from seeking judicial authorization
for such surveillance. Indeed, in Dorsey v. State, the court explicitly declined to
decide whether the interception of "land-line telephone messages transmitted in
part by wireless signals" would require a wiretap order. 402 So.2d 1178, 1184
n. 4. By obtaining a state court order for the Plasencias' cellular telephone
numbers, the police officers were attempting to ensure against any possible
violation of Florida's wiretapping laws in the event a combination of cellular
and wire transmissions was utilized during the course of an intercepted
conversation. Thus, the cellular telephone wiretap was not outside the scope of
18 U.S.C. Sec. 2516(2) and was authorized by federal law under the special rule
found in Public Law 99-508, Sec. 111(b).

27

Moreover, even if the officers technically violated federal statutes by not

applying for a federal court order, no prejudice resulted. The purpose of the
federal legislation was to ensure that surveillance of cellular communications
did not occur without following federally mandated procedures or certain prior
state court procedures. In this case, the officers followed a state court procedure
with virtually identical standards as those found in the federal procedure and
any resulting error was harmless.

B. Probable Cause
28

Section 934.09(3)(a), Florida Statutes, requires that issuance of an order

authorizing the interception of wire or oral communications be predicated on a
judicial finding of "probable cause for belief that an individual is committing,
has committed, or is about to commit a particular offense enumerated in s.
934.07." (West Supp.1990). Cf. 18 U.S.C. Sec. 2518(3)(a). The probable cause
finding is based upon the "totality of the circumstances," and we review that
decision to ensure that the authorization was issued upon a substantial basis for
concluding that probable cause existed. United States v. Nixon, 918 F.2d 895,
900 (11th Cir.1990) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct.
2317, 2332, 76 L.Ed.2d 527 (1983)).

29

The determination of an informant's credibility is based upon the "totality of the

circumstances," including the traditional review of the basis of his knowledge
and reliability. Gates, 462 U.S. at 238, 103 S.Ct. at 2332. The Gates standard
requires only that "major portions" of the informant's statements be verified.
462 U.S. at 246, 103 S.Ct. at 2336. In this case, the tipster gained his
information from direct, personal involvement in Plasencia's organization. Over
an extended period of time, the tipster provided a vast quantity of detailed
information, the principal portions of which were corroborated. The appellants
do not confront the volume of uncontested data establishing probable cause to
believe that Raul Plasencia was operating a narcotics distribution network.
Rather, the appellants contend that the district judge erred in concluding that
the issuing court had been presented a fair opportunity to assess the reliability
of the tipster, in light of the claim that misrepresentations in the affidavit
bolstering the tipster's credibility were intentionally included and impeaching
information deliberately omitted.3 In support of their argument, the appellants
list numerous instances in which allegations made in the affidavit are
contrasted with the testimony adduced at the evidentiary hearing on the motion
to suppress.

30

An examination of the record, however, belies the appellants' argument. All of

the appellants' assertions of error were the subject of factual disputes which
were exhaustively reviewed by the district court. The district court carefully
considered many witnesses' testimony and assessed their credibility. In its
order, the district court rejected all but six claims, finding that those remaining
were immaterial and insufficient to counter the incriminating information
presented in the affidavit.4 Moreover, the affidavit reveals instances where the
affiants were careful to inform the issuing judge that the tipster had provided
information that had not or could not be corroborated.5

31

The district court's underlying factual findings are reviewable under the clearly
erroneous standard. United States v. Wuagneux, 683 F.2d 1343, 1355 (11th
Cir.1982), cert. denied, 464 U.S. 814, 104 S.Ct. 69, 78 L.Ed.2d 83 (1983). The
claims of error which were proven were properly deemed immaterial, and the
district court properly found that the court issuing the initial wiretap had a
substantial basis for its probable cause finding.
C. Alternative Investigative Means

32

An application for an order authorizing the interception of wire

communications must include "[a] full and complete statement as to whether or
not other investigative procedures had been tried and failed or why they
reasonably appear to be unlikely to succeed if tried or to be too dangerous."
Fla.Stat.Ann. Sec. 934.09(1)(c) (West. Supp.1990); 18 U.S.C. Sec. 2518(1)(c).
The appellants contend that the district court erred in concluding that the
affidavit and its supporting evidence demonstrated that less intrusive
investigative methods were unlikely to succeed.

33

An expert witness for the appellants testified that stationary surveillance could
easily have been accomplished of the Plasencia residence. Yet, the expert was
unaware of the countersurveillance measures which Plasencia had in place, and
he conceded that countersurveillance would affect the type of observations
which could successfully be undertaken. In fact, high walls encircling the
Plasencia residence and security cameras sweeping the surrounding area
hindered stationary observation of the compound. The affidavit recites that on
some forty-nine occasions attempts to determine what cars had entered the
Plasencia compound were unsuccessful.

34

The appellants also contend that the affidavit failed to specify how stationary
surveillance of a score of other residential and business premises suspected of
involvement with the organization under investigation had been tried and failed
or why it was unlikely to succeed if tried. The affidavit, however, does state
that several attempts were made to follow Carballo and on each occasion he
engaged in evasive maneuvers which frustrated the attempts to follow him.
Likewise, efforts to conduct physical surveillance of Carballo's residence and of
suspected cocaine storage sites were unsuccessful.

35

The appellants assert that during the four and one-half month investigation, the
officers should have cultivated the apparently well-connected tipster into a
confidential informant for use in an undercover investigation. The officers,
however, should not be faulted for failing to unmask the tipster. His calls were

unannounced and generally of short duration. The tipster sought to conceal his
identity and acted accordingly. Even if the tipster had been identified, one
cannot presume that he would have agreed to act as an informant given his fear
of the Plasencia organization.
36

The appellants also contend the law enforcement officers failed to attempt any
infiltration of the organization though undercover agents, failed to execute
search warrants at any of the premises suspected of containing cocaine, failed
to subpoena any of the persons suspected of being involved in the organization
to testify before the grand jury, and failed to offer immunity or protective
services of the government to any of these potential witnesses. These arguments
were fully presented to the district court which properly concluded that none of
the alternative techniques suggested would have been feasible.

37

It is true that " 'we must be careful not to permit the government merely to
characterize a case as a "drug conspiracy" that is therefore inherently difficult
to investigate. The affidavit must show with specificity why in this particular
investigation ordinary means of investigation will fail.' " United States v.
Ippolito, 774 F.2d 1482, 1486 (9th Cir.1985) (quoting United States v.
Robinson, 698 F.2d 448, 453 (D.C.Cir.1983) (per curiam) (emphasis in
original)). The necessity for electronic eavesdropping in this case was
considered in light of the demonstrated futility of alternative means of
investigation. The district court did not err in concluding that electronic
interception was a necessary tactic in this criminal investigation. See United
States v. Van Horn, 789 F.2d 1492, 1496-97 (11th Cir.), cert. denied, 479 U.S.
855, 107 S.Ct. 192, 93 L.Ed.2d 124 (1986).

38

D. Thirty-Day Duration of Wiretap Authorization

39

If a wiretap order authorizes electronic surveillance to continue after the first

interception of a communication of the type sought, the application must
contain "a particular description of facts establishing probable cause to believe
that additional communications of the same type will occur thereafter."
Fla.Stat.Ann. Sec. 934.09(1)(d) (West Supp.1990); 18 U.S.C. Sec. 2518(1)(d).

40

The initial wiretaps on the Plasencias' phones were authorized to continue

beyond interception of the first incriminating conversations up to a period of
thirty days. The appellants contend that this portion of the order was based on
the affiants' conclusory allegation that "the nature of this investigation is such
that the court's authorization for interception should not automatically terminate
when the type of communications described [above] have first been obtained."

According to the appellants, the affiants failed to make the necessary showing
of a particular description of facts establishing probable cause.
41

Contrary to the appellants' assertions, given the complexity of the case as fully
set forth in the affidavit, we find abundant probable cause existed to justify the
thirty-day duration of the initial wiretap authorization. The affidavit alleged the
existence of a complex, continuing narcotics conspiracy involving many
persons, each performing specialized tasks within the criminal organization.
The expressed objectives of the investigation were to assemble evidence of this
wrongdoing. Probable cause existed to lead one to believe that more than a
single relevant conversation would take place or even a limited and discrete
series of relevant conversations. See, e.g., United States v. Sklaroff, 323
F.Supp. 296, 306-07 (S.D.Fla.1971), aff'd, 506 F.2d 837 (5th Cir.), cert. denied,
423 U.S. 874, 96 S.Ct. 142, 46 L.Ed.2d 105 (1975).

II. Sufficiency of the Evidence

42

To determine whether sufficient evidence supports Cosio's convictions for

conspiracy and possession, we review the evidence in the light most favorable
to the government and consider whether a reasonable jury could find it proves
Cosio's guilt beyond a reasonable doubt. United States v. Sanchez, 722 F.2d
1501, 1505 (11th Cir.), cert. denied, 467 U.S. 1208, 104 S.Ct. 2396, 81 L.Ed.2d
353 (1984).

43

In order to sustain Cosio's conviction for conspiracy, we must determine if the

evidence established that a conspiracy existed, and that, with an understanding
of its essential objective, Cosio voluntarily became a part of it. United States v.
Lee, 695 F.2d 515, 517 (11th Cir.), cert. denied, 464 U.S. 839, 104 S.Ct. 130,
78 L.Ed.2d 125 (1983). The requisite proof may be established by
circumstantial evidence, or by inferences to be drawn from the conduct of an
individual or his confederates. United States v. Bascaro, 742 F.2d 1335, 1359
(11th Cir.1984), cert. denied, 472 U.S. 1017, 105 S.Ct. 3476, 87 L.Ed.2d 613
(1985).

44

According to Cosio, other than his one isolated act of retrieving cocaine from
Garcia's car in Veccio's driveway, no evidence shows Cosio to have had any
connection with any of the other co-defendants. Cosio contends that this
evidence alone is insufficient to link him to the conspiracy.

45

Cosio's argument omits proof at trial which revealed an agreement by Veccio to

distribute ten kilograms of cocaine to Doe and Cosio. Intercepted phone

conversations revealed that Doe could not take delivery of the cocaine at the
time arranged, so he informed Veccio that his associate, Cosio, could pick up
the cocaine. Doe assured Veccio that Veccio knew Cosio, and after conceding
that he was acquainted with Cosio, Veccio agreed to deliver the cocaine to
Cosio. During the course of phone calls, Doe referred to Cosio as his "partner."
46

Based upon the foregoing, we conclude that the jury was entitled to find that
Cosio had entered the conspiracy. His activity consisted of planning the pickup
of a large quantity of cocaine, personal execution of the delivery, and a
readiness to discuss its consequences. Even if Cosio's participation is viewed as
a single act of retrieving ten kilograms of cocaine, the jury could presume that
Cosio was familiar with the prior illicit activities of both Doe and Veccio, and
infer his knowledge of the broader, ongoing conspiracy. Cosio's conduct was
sufficient to implicate him in the conspiracy. See United States v. Hawkins, 661
F.2d 436, 454 (5th Cir.1981), cert. denied, 456 U.S. 991, 102 S.Ct. 2274, 73
L.Ed.2d 1287 (1982).6

III. Severance Motion

47

Severance is warranted where the joinder of defendants in a trial together

results in compelling prejudice. United States v. Marszalkowski, 669 F.2d 655,
660 (11th Cir.), cert. denied, 459 U.S. 906, 103 S.Ct. 208, 74 L.Ed.2d 167
(1982). If the jury cannot keep separate the evidence that is relevant to each
defendant and render a fair and impartial verdict as to each, severance should be
granted. Marszalkowski, 669 F.2d at 660. Cosio contends that the district court
erred in denying his motion for severance because the admission of the wiretap
evidence against Veccio deprived Cosio of his right to a fair trial. Through
severance relief, Cosio claims that he would have received a trial free from the
prejudicial effects associated with the wiretap evidence against Veccio.

48

Cosio's argument is conclusory and fails to explain how severance would have
prevented his jury from being exposed to the "prejudicial" evidence. The
wiretap evidence against Veccio would have been admissible under Federal
Rule of Evidence 801(d)(2)(E) in its entirety against Cosio even at a separate
trial because Veccio's conversations constitute statements of a co-conspirator
made in furtherance of the conspiracy.7 Cosio has identified no evidence not
admissible against him at a separate trial, much less evidence of such a specific
and compelling prejudice as to mandate a severance. Accordingly, the district
court did not abuse its discretion in denying Cosio's motion for severance.

IV. Expert Testimony

49

The district court has broad discretion in admitting or excluding expert

testimony. The court's decision is to be sustained on appeal unless it is
manifestly erroneous. United States v. Brown, 872 F.2d 385, 392 (11th Cir.),
cert. denied, --- U.S. ----, 110 S.Ct. 253, 107 L.Ed.2d 203 (1989). Veccio
contends that the district court improperly permitted Sergeant Carlos Gonzalez
of the Metro-Dade Police Department to testify to his understanding of certain
code words or phrases overheard in the intercepted conversations and to further
testify as to the identities of individuals referred to by nickname in certain calls.

50

Federal Rule of Evidence 702 states that "if scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the evidence or
to determine a fact in issue, a witness qualified as an expert by knowledge,
skill, experience, training, or education, may testify thereto in the form of an
opinion or otherwise." (West 1984). Veccio contends that Sergeant Gonzalez
had no specialized training in the use of codes and had never before been
qualified as an expert. At the time of trial, Sergeant Gonzalez had been a police
officer for twelve years in the Metro-Dade Police Department, had investigated
numerous narcotics cases, and is a native Spanish speaker with an
understanding of slang peculiar to the Cuban dialect. From the monitoring's
inception, he supervised and coordinated the efforts of the agents intercepting
the calls with the police surveillance teams. He worked twelve-hour shifts in
the monitoring outposts and overheard the conversations as they were
intercepted. He also listened to significant calls that occurred while he was off
duty.

51

Law enforcement officers may testify as to the meaning of slang or code words.
United States v. Brown, 872 F.2d at 392 (agent properly permitted to testify
that defendant's use of terms "paper," "candy," and "dresses" were references to
cocaine). Veccio contends that while a qualified expert may testify in a limited
fashion about codes, it is impermissible to allow interpretive testimony of the
sort at issue in this case. United States v. White, 569 F.2d 263, 267 n. 4 (5th
Cir.), cert. denied, 439 U.S. 848, 99 S.Ct. 148, 58 L.Ed.2d 149 (1978). See also
United States v. Dicker, 853 F.2d 1103, 1108 (3d Cir.1988). Veccio contends
that the clearest example of the improper admittance of Gonzalez's testimony
occurred in permitting his interpretation of the word "family" in several calls.
Despite the fact that the district court initially struck from the record Sergeant
Gonzalez's translation of this word as meaning "cocaine," the prosecutors
continued to point out when the word "family" appeared in conversations until
they prevailed in eliciting the testimony previously found to be improper.

52

After carefully reviewing the record, we conclude that even if it was improper

to admit Sergeant Gonzalez's testimony concerning certain code words or

phrases, and other instances wherein Sergeant Gonzalez set forth the identity of
an individual referred to by nickname, Veccio is not entitled to prevail on
appeal because the error was harmless beyond a reasonable doubt. See United
States v. Turner, 871 F.2d 1574, 1581 (11th Cir.), cert. denied, --- U.S. ----, 110
S.Ct. 552, 107 L.Ed.2d 548 (1989). Aside from Sergeant Gonzalez's testimony,
overwhelming independent evidence was presented concerning Veccio's
involvement in the drug conspiracy sufficient to negate any reasonable doubt as
to whether the error contributed to his conviction.
V. The Jury Instruction
53

After seven days of trial, six defendants entered pleas of guilty outside the
presence of the jury. Veccio and Cosio continued with their joint trial. They
made no motion for a mistrial. At their request, the court advised the jury
according to an instruction prepared by the defense as to the reason for the
sudden absence of the other defendants in the case. On appeal, Veccio contends
that although he requested the charge, it constituted plain error and requires that
his conviction be reversed.

54

To the contrary, the fact that a co-conspirator's guilty plea was made known to
the jury will rarely result in plain error even when no cautionary instruction is
given. United States v. King, 505 F.2d 602, 608 (5th Cir.1974).8 In the absence
of aggravated circumstances, a cautionary instruction directing the jury not to
consider a guilty plea as substantive evidence of guilt will sufficiently cure any
potential for prejudice to the defendant on trial. United States v. Baete, 414
F.2d 782, 783-84 (5th Cir.1969). The instruction given in this case plainly
directed the jury not to consider the co-defendants' guilty pleas as substantive
evidence against appellants. The comprehensive instructions given were
sufficient to remove any prejudice which might otherwise have flowed from the
jury's knowledge that six co-defendants had pleaded guilty.

55

Moreover, because Veccio caused the evidence of the co-defendant's guilty

plea to be presented as a tactical trial decision, he waives any claim of error on
appeal. United States v. Cook, 461 F.2d 906, 910-11 (5th Cir.), cert. denied,
409 U.S. 949, 93 S.Ct. 269, 34 L.Ed.2d 219 (1972). Veccio made a deliberate
tactical decision in requesting that the jury be informed that the co-defendants
had entered pleas of guilty. Indeed, over the government's objections, Veccio
requested that the jury be told specifically to which count each defendant had
pleaded guilty.

VI. Prosecutorial Misconduct

56

"When a plea rests in any significant degree on a promise or agreement of the

prosecutor, so that it can be said to be part of the inducement or consideration,
such promise must be fulfilled." Santobello v. New York, 404 U.S. 257, 262, 92
S.Ct. 495, 499, 30 L.Ed.2d 427 (1971). Moreover, the court must use objective
standards to determine the disputed terms of the plea agreement. In re Arnett,
804 F.2d 1200, 1202 (11th Cir.1986). Raul Plasencia pleaded guilty to Count
III of the five-count indictment which charged Plasencia with possession with
intent to distribute cocaine. In exchange for Plasencia's guilty plea, the
government promised to dismiss with prejudice the remaining counts of the
indictment at the time of sentencing. The government also promised to make no
recommendation as to the quality or quantum of punishment.

57

Plasencia contends that the government breached its agreement when in

response to defense counsel's recommendation that the court impose a twentyyear sentence, the prosecutor commented:

I58think, Your Honor, for Mr. Cagney to suggest the court put twenty years as an
appropriate sentence under these circumstances they are, Your Honor, with respect
to the relevant culpability of the other defendants; let me say we can't believe the
level of this comparison to any defendant, whether they went to trial or pled out.
59

Your Honor, Mr. Plasencia was the kingpin in this organization. It was clearly
his organization....

60

Plasencia contends that the prosecutor's statement amounts to disparaging

criticism of the recommended twenty-year sentence, and reads like an
abbreviated but emphatic closing statement urging the court to find the
defendant guilty of managing a continuing criminal enterprise in violation of 21
U.S.C. Sec. 848.

61

The government, however, expressly reserved in the plea agreement the right to
inform the court and the probation department of all facts relevant to the
sentencing process. The dismissal of the continuing criminal enterprise count as
part of the plea bargain did not preclude the government from characterizing
Plasencia as the ringleader or principal in the offense. "It is acceptable to
consider evidence of crimes for which defendant has been indicted but not
convicted. Activities for which there has been no charge filed can be considered
as well." Tucker v. Kemp, 762 F.2d 1480, 1487 (11th Cir.) (en banc), vacated,
474 U.S. 1001, 106 S.Ct. 517, 88 L.Ed.2d 452 (1985), reinstated, 802 F.2d
1293 (1986), cert. denied, 480 U.S. 911, 107 S.Ct. 1359, 94 L.Ed.2d 529
(1987). The prosecutor's statement concerning Plasencia's leading role in the
offense was relevant to the sentencing process. The government never agreed

that Plasencia was not the "kingpin" or that it would refrain from characterizing
him as such. Consequently, the prosecutor's statement was not a breach of
Plasencia's plea agreement.
CONCLUSION
62

For the reasons stated above, we affirm the appellants' convictions and
sentences.

63

AFFIRMED.

Public Law 99-508, Sec. 111(b) provides in full:

Any interception pursuant to section 2516(2) of title 18 of the United States
Code which would be valid and lawful without regard to the amendments made
by this title [enacting sections 2521 and 3117 of this title, amending this section
and sections 2232, 2511 to 2513, 2516(1)(a), (1)(c), (1)(g) to (l ), (2), (3), and
2517 to 2520 of this title, and enacting provisions set out as notes under this
section] shall be valid and lawful notwithstanding such amendments if such
interception occurs during the period beginning on the date such amendments
take effect and ending on the earlier of-(1) the day before the date of the taking effect of State law conforming the
applicable State statute with chapter 119 of title 18, United States Code, as so
amended; or
(2) the date two years after the date of the enactment of this Act [Oct. 21,
1986].
18 U.S.C. Sec. 2510 historical note (West Supp.1990).

In examining the scope of chapter 934, Florida Statutes, the Florida Supreme
Court construed "the prohibition of interception of wire communications 'made
in whole or in part through the use of facilities for the transmission or
communications by the aid of wire ...' to apply only to so much of the
communication as is actually transmitted by wire and not broadcast in a manner
available to the public." Dorsey v. State, 402 So.2d 1178, 1183 (Fla.1981)
(police interception of messages broadcast over radio waves to a pocket pager
does not require a court order)

Wiretap applications must contain a "full and complete statement of the facts
and circumstances relied upon by the applicant to justify his belief that an order

should be issued...." Fla.Stat.Ann. Sec. 934.09(1)(b) (West Supp.1990); 18

U.S.C. Sec. 2518(1)(b)
The district court found that
4

the inaccuracies in the affidavit which the Defendants have established are
references to Agent Grassman's having told Detective Parr that two confidential
informants identified Plasencia and Carballo as involved in drug smuggling,
when Agent Grossman [sic] now recalls having mentioned only one; the dates
of the Rios and Carballo interviews, which occurred on March 16 rather than
May 16; the date of Detective Parr's unsuccessful surveillance of the Plasencia
residence which occurred on April 21, but which is variously reported to have
taken place on May 21 and June 21; and the date on which the tipster called
while Detective Falcon was out of town, which was reported as April 23, when
in fact it was April 28. Additionally, Detective Falcon, in testimony at the
suppression hearing, revised his statement of prior experience in wiretap cases
to reflect his having acted once as a monitor and another time as a surveillance
agent, rather than having acted twice as a monitor, as the affidavit states.
Finally, while the evidence is not conclusive, the Court would find that on the
evening of April 21, Detective Falcon saw a dark car in the Plasencia
compound which only appeared to be a Mercedes, but which he could not
positively identify as such.

For example, the affiants openly reported that the tipster gave them an
inaccurate address for the residence of Carlos Perez. They also stated that the
tipster insisted that Plasencia's operations were protected by various corrupt
police officers, though no official wrongdoing was ever detected. The affidavit
also revealed other allegations of the tipster which were not confirmed after
subsequent police investigation

Because we do not believe Cosio's conspiracy conviction should be set aside

for insufficient evidence, we do not address his argument that his conviction
for possession must be remanded for a new trial because his trial upon the
possession charge was tainted by evidence relating to his involvement in the
conspiracy

Federal Rule of Evidence 801(d)(2)(E) provides that "[a] statement is not

hearsay if ... [t]he statement is offered against a party and is a statement by a
coconspirator of a party during the course and in furtherance of the
conspiracy." (West Supp.1990)

In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981), the court adopted
as precedent all decisions of the former Fifth Circuit Court of Appeals decided
prior to October 1, 1981