1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-25-1994

USA v. Quintero

Precedential or Non-Precedential:

Docket 93-1377

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Recommended Citation

"USA v. Quintero" (1994). 1994 Decisions. Paper 166.

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 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 Nos. 93-1377; 93-1386; 93-1389 

 93-1415; 93-1416; 93-1572 

 

 UNITED STATES OF AMERICA 

 

 v. 

 MELBA QUINTERO 

 Appellant in 93-1377. 

 MARIA RODRIGUEZ 

 Appellant in 93-1386. 

 SANTIAGO GONZALEZ 

 Appellant in 93-1389. 

 JOSE GONZALEZ-RIVERA 

 a/k/a "Tosti", Aberto Otero 

 Jose Gonzalez-Rivera 

 Appellant in 93-1415. 

 JOSE CRUZ 

 Appellant in 93-1416. 

 JOAQUIN MORGADO 

 Appellant in 93-1572. 

 

 On Appeal From the United States District Court 

 For the Eastern District of Pennsylvania 

 (D.C. Criminal Action Nos. 92-00055-01; 02; 05; 08; 10; 12) 

 

 Argued: March 24, 1994 
 Before: HUTCHINSON, ROTH and ROSENN, Circuit Judges
 (Opinion Filed October 25, l994 ) 

 

Michael R. Stiles 

United States Attorney 

Walter S. Batty, Jr. (Argued) 

Assistant United States Attorney 

Thomas H. Suddath, Jr. (Argued) 

Assistant United States Attorney 

Carlos A. Martir, Jr. 

Assistant United States Attorney 

615 Chestnut Street, Suite 1250 

Philadelphia, PA 19106 

 Attorneys for Appellee 

Mark S. Greenberg, Esquire 

Stephen R. LaCheen & Associates 

3100 Lewis Tower Building 

15th & Locusts Sts. 

Philadelphia, PA 19102 

 Attorney for Appellant Quintero 

Mark D. Mungello, Esquire (Argued) 

103 LaCosta Drive 

Blackwood, NJ 08012 

 Attorney for Appellant Rodriguez 

 

James P. McFadden, (Argued) 

Assistant Federal Defender 

Elaine DeMasse 

Senior Appellate Counsel 

Maureen Kearney Rowley 

Chief Federal Defender 

Defender Association of Philadelphia 

Federal Court Division 

437 Chestnut Street 

Lafayette Building, Suite 800 

Philadelphia, PA 19106-2414 

 Attorneys for Appellant Gonzalez 

Christopher D. Warren, Esquire (Argued) 

DeStefano & Warren, P.C. 

437 Chestnut Street 

Lafayette Building, Suite 1006 
Philadelphia, PA 19106 

 Attorney for Appellant Gonzales-Rivera 
William T. Cannon, Esquire (Argued) 

Law Offices of William T. Cannon 

12 South 12th Street 

2540 PSFS Building 

Philadelphia, PA 19107 

 Attorney for Appellant Cruz 

Lawrence S. Krasner, Esquire 

Krasner & Restrepo 

924 Cherry Street, 2nd Floor 

Philadelphia, PA 19107 

 Attorney for Appellant Morgado 

 

 OPINION OF THE COURT 

 

ROTH, Circuit Judge: 

 Defendants Melba Quintero, Jose Gonzalez-Rivera, Maria 

Rodriguez, Santiago Gonzalez, Joaquin Mordago, and Jose Cruz 

appeal from judgments entered in the United States District Court 

for the Eastern District of Pennsylvania after a jury trial in 

which they were all convicted of conspiracy to distribute in 

excess of five kilograms of cocaine, in violation of 21 U.S.C. § 

846 (Count One). In addition to the conspiracy count, each of 

the six defendants was convicted of other counts in the twentyeight count indictment. 

 The trial lasted twenty days during which the 

government presented evidence consisting of electronic 

surveillance, audio recordings, video recordings, documents 

seized from defendants at the time of their arrest, and testimony 
of numerous law enforcement witnesses and of an expert in 

interpreting drug jargon. The government also presented the 

testimony of Cristobal Paz, one of the defendants' coconspirators, who had pled guilty and who testified as a 

cooperating witness for the prosecution. 

 In addition to the conspiracy count, the jury found 

Gonzalez-Rivera guilty of one count of engaging in a continuing 

criminal enterprise ("CCE") in violation of 21 U.S.C. § 848 

(Count Two), two counts of possession with intent to distribute 

cocaine in violation of 21 § U.S.C. 841(a)(1) (Counts Five and 

Six), and one count of use of a communication facility to 

facilitate the conspiracy in violation of 21 U.S.C. § 843(b) 

(Count Eight). Rodriguez was convicted of one count of use of a 

communication facility to facilitate the conspiracy (Count 

Thirteen). Gonzalez was convicted of two counts of distribution 

of cocaine in violation of 21 U.S.C. § 841(a)(1) (Counts Fourteen 

and Sixteen) and one count of use of a communication facility to 

facilitate the conspiracy (Count Twenty-One). The jury also 

found that, pursuant to 21 § U.S.C. 853, Gonzalez must forfeit 

certain property to the United States (Count Twenty-Five). 

Quintero was convicted of three counts of use of a communication 

facility to facilitate the conspiracy (Counts Seventeen, 

Nineteen, and Twenty), one count of distribution of cocaine 

(Count Twenty-Two), and one count of possession with intent to 

distribute cocaine (Count Twenty-Three). Mordago was convicted 
of one count of use of a communication facility to facilitate the 

conspiracy (Count Eighteen). Cruz was convicted of one count of 

possession with intent to distribute cocaine (Count Five).1

 On appeal, all of the defendants, except Cruz, 

challenge the district court's refusal to suppress certain 

telephone surveillance tapes which comprised part of the 

government's evidence. Defendants assert that the tapes were not 

sealed immediately after the final authorization order expired, 

 

1. As stated, each defendant was convicted on Count One of 

conspiracy to distribute in excess of five kilograms of cocaine. 

Based on these convictions, the defendants received the following 

sentences. Gonzalez-Rivera was sentenced to life imprisonment on 

each of Counts One, Two, Five, and Six; 48 months imprisonment on 

Count Eight to run concurrently with the life terms; and a $250 

special assessment. Rodriguez was sentenced to 144 months 

imprisonment on Count One; 48 months imprisonment on Count 

Thirteen to run concurrently with the earlier count; five years 

supervised release; and a $100 special assessment. Gonzalez was 

sentenced to 240 months imprisonment on Counts One, Fourteen, and 

Sixteen; 48 months imprisonment on Count Twenty-One to run 

concurrently with the earlier counts; five years supervised 

release; $21,000 in restitution; $5,000 fine; and a $200 special 

assessment. Quintero was sentenced to 235 months imprisonment on 

Counts One, Twenty-Two, and Twenty-Three; 48 months imprisonment 

on Counts Seventeen, Nineteen, and Twenty to run concurrently 

with the earlier counts; five years supervised release; and a 

$300 special assessment. According to Quintero's Presentence 

Report, Quintero was found not guilty on Count Twenty-Eight and 

discharged as to that forfeiture count. Our reading of the trial 

transcript indicates that the jury found that Quintero must 

forfeit $2,000 resulting from money received as alleged in overt 

act 36 of Count One, but not guilty as to $3,000 resulting from 

money received as alleged in overt act 37 of Count One. Mordago 

was sentenced to 264 months imprisonment on Count One; 48 months 

imprisonment on Count Eighteen to run concurrently with the 

earlier count; five years supervised release; and a $100 special 

assessment. Cruz was sentenced to 186 months imprisonment on 

Counts One and Five to run concurrently; five years supervised 

release; and a $100 special assessment. 
as required by statute, and that the government failed to offer a 

satisfactory explanation for the delay in sealing. For the 

reasons which we will more fully develop below, we conclude that 

certain of the surveillance tapes should have been suppressed. 

The government concedes that those convictions arising directly 

from the tapes cannot stand if the tapes are suppressed. We 

agree and will reverse those convictions. As for the remaining 

convictions, we will examine them under a harmless error standard 

to determine whether they must also be reversed.2

I. 

 On February 7, 1992, a grand jury in the Eastern 

District of Pennsylvania returned a twenty-eight count indictment 

charging twelve individuals, including the six defendants here, 

 

2. In addition to the counts affected by the telephone 

surveillance tapes, and the harmless error analysis we will apply 

to those counts, defendants also challenge numerous individual 

aspects of their convictions and sentences. Gonzalez-Rivera 

asserts that his conviction for conspiracy to distribute cocaine 

should be dismissed as a lesser included offense and challenges 

the sufficiency of the evidence to support (1) his conviction of 

engaging in a CCE and (2) the district court's conclusion that he 

was involved in the distribution of in excess of 150 kilograms of 

cocaine. Rodriguez challenges the sufficiency of the evidence to 

support her conviction of conspiracy to distribute cocaine and 

the district court's refusal to allow defendant's counsel to 

cross-examine Quintero. Gonzalez asserts that the district court 

erred in failing to grant a mistrial sua sponte and to sever his 

trial from Mordago's trial. Gonzalez also challenges his 

conviction for conspiracy to distribute cocaine as well as the 

district court's imposition of restitution and a fine. Cruz 

challenges the district court's refusal to suppress certain 

physical evidence obtained during a search of a car driven by the 

defendant. We have carefully reviewed these grounds for appeal 

and find them to be without merit. 
with a conspiracy to distribute cocaine in the Philadelphia 

region. The indictment resulted from an extensive undercover 

investigation conducted by the Federal Bureau of Investigation 

("FBI") and other law enforcement personnel. 

 After receiving information from a cooperating witness 

that drug dealers in the Philadelphia area needed vehicles with 

concealed compartments, the FBI established an undercover 

operation known as MRK Services, Inc. ("MRK"). MRK rented "load 

cars"--cars which had secret compartments that could conceal 

large quantities of drugs or currency. MRK also leased out 

mobile cellular telephones. Hidden video and audio devices had 

been installed in the MRK offices to record the transactions that 

took place there. In addition, monitoring devices had been 

placed in the load cars to facilitate surveillance. Two 

undercover officers, Carlos Tapia ("agent Tapia") and Arsenio 

Gonzalez ("agent Gonzalez") posed as employees of MRK and in that 

capacity had dealings with several of the defendants. 

 As part of the investigation, the government conducted 

ninety days of electronic surveillance of Paz's cellular 

telephone, from August 1, 1991, through October 29, 1991. There 

were three one-month authorizations and three judicial sealings. 

The first authorization expired on August 30, 1991 ("August 

tapes"). The August tapes were sealed eleven days later, on 

September 10, 1991, by District Court Judge James J. Giles. The 

first extension of the surveillance was authorized for thirty 
days and expired on September 29, 1991 ("September tapes"). The 

September tapes were sealed five days later, on October 5, 1991, 

by District Court Judge James McGirr Kelly, who was serving as 

Emergency Judge. The second, and final, extension of the 

surveillance was authorized for thirty days and expired on 

October 29, 1991 ("October tapes"). The October tapes were 

sealed twenty days later, on November 18, 1991, by Judge Giles. 

 During this period, Paz used his cellular phone to 

discuss his cocaine business with many of the individuals named 

in the indictment. At trial, the government offered into 

evidence sixty tape recordings and four video recordings 

involving the defendants. A large majority of the taped 

conversations were of telephone calls on Paz's cellular phone. 

The remaining calls were recorded as incoming calls to MRK. Each 

of the defendants, except Cruz, was recorded talking with Paz on 

a number of occasions. Before turning to the question of whether 

the government failed to seal the tapes in a manner consistent 

with the law, an overview of the evidence presented at trial is 

important to understanding the scope of the enterprise. 

 In November 1990, an informant serving a term of 

imprisonment with Cristobal Paz informed the FBI that Paz, who 

intended to re-enter the drug trade on release from prison, 

needed a "ghost job" in order to satisfy the terms of his parole. 

The FBI instructed the informant to give Paz the MRK telephone 

number. After his release, Paz called MRK and spoke to agent 
Tapia about a ghost job. Paz was informed that he could work as 

a ghost employee with MRK if he agreed to supply MRK with funds 

up front, which MRK would then use to pay Paz. Paz did not 

comply with this condition and was not given a ghost job. 

 On his release from prison, Paz sought to reestablish 

himself in the Philadelphia area as a major cocaine supplier. He 

claims to have received large quantities of cocaine from 

Gonzalez-Rivera in New York and from Oscar Fuentes in Florida. 

Paz began to sell cocaine to agent Gonzalez. On May 7, 1991, 

three individuals, working for Paz, delivered one kilogram of 

cocaine to MRK in exchange for $21,000. After receiving the 

cocaine, agent Gonzalez called Paz to confirm that it had 

arrived. Paz testified that this cocaine was supplied by Fuentes 

and delivered to Philadelphia by Santiago Gonzalez. According to 

Paz, after he took $1,000 on the deal, he paid Gonzalez the 

remaining $20,000 for the cocaine. On cross-examination, Paz 

acknowledged that he had earlier told the FBI that this cocaine 

was supplied by Gonzalez-Rivera. 

 Paz testified that, although he was suspicious that 

agent Gonzalez was working undercover, this first sale helped to 

convince him that MRK was not an undercover police operation. 

Three weeks after the first cocaine sale, Paz leased two cellular 

phones and one digital telephone pager from MRK. One of the 

telephones was for his own use, while the other was for a 
codefendant. It was Paz's cellular phone that was later 

wiretapped. 

 In June 1991, Paz and Jose Rosario travelled to New 

York to receive a shipment of cocaine from Gonzalez-Rivera. Paz 

returned to Philadelphia before receiving the cocaine but 

testified that Gonzalez-Rivera called to tell him that the 

cocaine had arrived. Cruz and Rosario left New York with the 

cocaine to deliver it to Paz in Philadelphia. They were stopped 

by the police for speeding on the New Jersey turnpike. Because 

of their suspicious behavior, they were detained and their car 

was towed to the police barracks. A police dog reacted 

positively to the presence of cocaine in the trunk of the car. 

The New Jersey police obtained a warrant to search a suitcase in 

the trunk and discovered fifteen kilograms of cocaine in it. 

 Paz testified that after the seizure of this cocaine 

Gonzalez-Rivera contacted his boss in the drug network, Guillermo 

(a/k/a "Memo"), in Medellin, Colombia. According to Paz, 

Gonzalez-Rivera received his cocaine from Guillermo and Guillermo 

worked for Pablo Escobar. 

 On June 27, 1991, the day after the fifteen kilogram 

shipment of cocaine was seized, Paz rented a load car from MRK. 

Agent Gonzalez testified that, when Paz returned the car on July 

1, he stated that he had made two trips to New York, carrying 

forty-six kilograms on each trip and that he had transported a 

total of 145 kilograms of cocaine while he had the car. In 
addition, Paz said that he had used the car to transport a large 

amount of cash to Baltimore. After Paz left MRK, the agents 

inspected the car and found white powder in the hidden 

compartments. The powder later tested positive for cocaine. 

 Two days later, on July 3, Paz rented a load car and 

drove it to New York. When Paz returned the car a little more 

than a week later, the agents discovered two packages of coffee 

in the secret compartment. An FBI agent testified that coffee is 

often used by drug traffickers to mask the smell of drugs from 

trained drug-sniffing dogs. 

 On July 15, Paz rented the same load car from MRK. He 

drove to Gonzalez-Rivera's residence in the Bronx, New York. Paz 

testified that he met Gonzalez-Rivera to take delivery of twentysix kilograms of cocaine. New York City detectives set up 

surveillance at Gonzalez-Rivera's residence and at the residences 

of co-defendants Diego Jesus Ortega ("Ortega") and Ortega's 

nephew, Diego Mauricio Lopez-Ortega ("Lopez-Ortega"). Paz met 

Gonzalez-Rivera in Manhattan and drove to Gonzalez-Rivera's 

residence in the Bronx. On arriving at his residence, GonzalezRivera removed a gym bag from the car. One hour later, an 

unidentified individual exited Gonzalez-Rivera's residence with 

two gym bags and placed them in the car that Paz had rented from 

MRK. Later that day, Ortega left Gonzalez-Rivera's residence 

carrying a gym bag which he took to Lopez-Ortega's residence in 

Queens. Police later obtained permission from Lopez-Ortega to 
search his apartment; they found six kilograms of cocaine in a 

gym bag. Paz testified that the cocaine he received from 

Gonzalez-Rivera was brought to Philadelphia for distribution. 

Paz further testified that the cocaine seized from Lopez-Ortega 

had been rejected by Paz when Gonzalez-Rivera offered it to him. 

Upon Paz's return of the load car to MRK, agents discovered 

coffee grounds scattered throughout the secret compartment area. 

 On September 13, Paz and Santiago Gonzalez met with 

agent Gonzalez at MRK to sell him one kilogram of cocaine. Agent 

Gonzalez indicated that he would like to see the cocaine. 

Santiago Gonzalez told Paz that "it's under your seat" in the car 

that they had driven to MRK. Paz retrieved the cocaine from the 

car and was paid $21,000 by agent Gonzalez. Paz took $1,000 to 

pay for his use of the cellular phone and handed the remaining 

$20,000 to Santiago Gonzalez. Agent Gonzalez testified that 

Santiago Gonzalez held onto the money throughout the remainder of 

the meeting. Paz testified that this kilogram was part of a 

twenty kilogram delivery that Santiago Gonzalez had brought from 

Florida. 

 On October 11, Paz gave five kilograms of cocaine on 

consignment to agent Gonzalez at MRK ("the October 11 cocaine"). 

Agent Gonzalez met Paz at a Sunoco gas station near MRK prior to 

the sale. According to agent Gonzalez, an unidentified female 

was in the front seat of Paz's car and Santiago Gonzalez was in 

the back seat. After meeting at the Sunoco Station, Paz and 
agent Gonzalez proceeded to MRK in separate cars. Paz entered 

MRK and delivered the five kilograms of cocaine. After the 

transaction, agent Gonzalez and Paz walked back outside. Agent 

Gonzalez noted that the unidentified woman and Santiago Gonzalez 

had remained in Paz's car. Paz testified that the October 11 

cocaine was part of a delivery that Santiago Gonzalez made from 

Florida. 

 In a telephone call taped by MRK on October 16, Paz and 

Santiago Gonzalez asked to be paid for the October 11 cocaine. 

Agent Tapia testified that the FBI wanted to delay payment 

because they were planning to arrest Paz in the near future. The 

FBI arranged a meeting with Paz for the following day. Just 

moments before Paz was to meet with agent Tapia, the FBI staged a 

ruse in which the purported pay-off was seized from agent 

Gonzalez by officers in a marked police car. The seizure was 

staged so that Paz witnessed the event in an effort to convince 

him that agent Tapia had planned to make the pay-off. 

 On October 31, Paz brought three additional kilograms 

of cocaine to MRK. Agent Gonzalez was instructed by the FBI to 

accept two of the three kilograms of cocaine from Paz but to 

refuse the third. Shortly after leaving MRK, Paz was arrested 

with the remaining kilogram of cocaine in his possession. 

 Paz testified that he received two and one-half 

kilograms of this cocaine from Quintero and codefendant Elsa Cruz 

during a trip to New York and that the remainder was left over 
from cocaine supplied to him by Santiago Gonzalez. He said that 

the cocaine he received from Quintero and Cruz was "wet" and he 

needed to dry it before selling it to MRK. Paz testified that 

Mordago helped him by drying the cocaine with acetone and that, 

during the October 31 transaction, he called Mordago to complain 

about the quality of the cocaine. 

 During the week following Paz's arrest, Santiago 

Gonzalez and agent Tapia talked on the MRK telephone about paying 

for the October 11 cocaine. On November 8, 1991, Santiago 

Gonzalez was arrested in the parking lot of a Comfort Inn, where 

he had arranged to meet agent Tapia to receive the $97,500 which 

was owed for the October 11 cocaine. Less than an hour later, 

Mordago was arrested in a room at the Comfort Inn, registered in 

Santiago Gonzalez's name. On January 16, 1992, agents arrested 

Gonzalez-Rivera and Rodriguez outside the residence in the Bronx 

where they lived together. At the time of their arrest, agents 

seized papers which contained the telephone and beeper numbers 

for several of the defendants named in the indictment. 

II. 

 The central question in this appeal is whether the 

district court erred in denying defendants' motions to suppress 

the wiretaps. The government concedes that the October tapes 

"were not sealed as soon as administratively practical." In view 

of this concession, we must decide whether the October tapes 

should have been suppressed because the government failed to 
supply a satisfactory explanation for the sealing delay. On this 

question, our review is plenary. United States v. Carson, 969 

F.2d 1480, 1487 (3d Cir. 1992) ("We exercise plenary review over 

the legal issues relating to the sealing . . . of the tapes."). 

III. 

A. 

 Each of the five defendants, contesting the admission 

of the wiretap tapes, presented individual briefs to the court. 

Quintero asserts that all of the tapes must be suppressed. 

Gonzalez-Rivera and Mordago challenge the August and October 

tapes, while Rodriguez and Santiago Gonzalez limit their 

challenge to the October tapes. For the reasons stated below, we 

conclude that only the October tapes must be suppressed. 

 In obtaining authorization for tapping into Paz's 

cellular phone, the government followed the procedures for 

interception contained in Title III of the Omnibus Crime Control 

and Safe Streets Act of 1968, as amended, 18 U.S.C. § 2510 et 

seq. Defendants do not challenge the initial authorization or 

the two extensions. The only challenge to the tapes is based on 

the assertion that the government failed to comply with § 

2518(8)(a) which provides, in part, that: 

 The recording of the contents of any wire, 

oral, or electronic communication under this 

subsection shall be done in such a way as 

will protect the recording from editing or 

other alterations. Immediately upon the 

expiration of the period of the order, or 

extensions thereof, such recordings shall be 

made available to the judge issuing such 

order and sealed under his directions. . . . 
The presence of the seal provided for by this 

subsection, or a satisfactory explanation for 

the absence thereof, shall be a prerequisite 

for the use or disclosure of the contents of 

any wire, oral, or electronic communication 

or evidence derived therefrom under 

subsection (3) of section 2517.3

(emphasis added). 

 In United States v. Ojeda Rios, 495 U.S. 257, 260 

(1990), the Supreme Court noted that § 2518(8)(a) contains "an 

explicit exclusionary remedy for noncompliance with the sealing 

requirement." The Supreme Court determined that, pursuant to § 

2518(8)(a), a seal had to be "obtained immediately upon 

expiration of the underlying surveillance order." Id. at 263 

(emphasis added). In the absence of a timely sealing, the Court 

interpreted the statute to require that the government supply a 

satisfactory explanation for its failure to comply with the 

statute. Id. "[T]he 'satisfactory explanation' language in § 

2518(8)(a) must be understood to require that the Government 

explain not only why a delay occurred but also why it is 

 

3. 18 U.S.C. § 2517(3) provides: 

 Any person who has received, by any means 

authorized by this chapter, any information 

concerning a wire, oral, or electronic 

communication, or evidence derived therefrom 

intercepted in accordance with the provisions 

of this chapter may disclose the contents of 

that communication or such derivative 

evidence while giving testimony under oath or 

affirmation in any proceeding held under the 

authority of the United States or of any 

State or political subdivision thereof. 
excusable." Id. at 265. The Court held that the explanation 

offered by the government for the delay must be the explanation 

relied upon by the government at the suppression hearing and not 

an excuse presented by the government for the first time on 

appellate review. Id. at 267. 

 In Ojeda Rios, a series of court orders authorized 

electronic surveillance of the defendant in three different 

locations for three different time periods. The government 

waited until the end of the entire investigation to seal the 

tapes. The underlying question was whether the government had 

been obliged to seal the tapes from each location when that stage 

of the surveillance had terminated or whether tapings at 

different locations for different periods of time could be 

considered to be extensions of the original order. The 

government asserted that its reason for the delay in sealing the 

tapes was the prosecutor's misunderstanding of the statutory term 

"extension." Specifically, the government attorney believed that 

he was not required to seal any tapes until all the taping had 

been completed. 

 The Supreme Court held that the excuse advanced by the 

government was "objectively reasonable" at the time the 

government's decision was made, given earlier Second Circuit 

decisions interpreting the meaning of "extension" and its 

relationship to the sealing requirement. The Court held that, if 

the government could show that the prosecutor's misunderstanding 
of the law was the excuse given by the government at the 

suppression hearing, such an "objectively reasonable" 

understanding of the law would be a "satisfactory explanation" 

for the government's delay in sealing the tapes. 495 U.S. at 

266. 

 Since Ojeda Rios, we have had two cases which required 

us to evaluate whether the government's delay in sealing tapes 

could be excused based on a "satisfactory explanation" provided 

by the government. See United States v. Vastola, 989 F.2d 1318 

(3d Cir. 1993) (Vastola III);4 United States v. Carson, 969 F.2d 

1480 (3d Cir. 1992). In Carson, we held that: 

 there are two kinds of justifiable government 

delays under the statutory scheme. First, 

there are the relatively short delays 

necessitated by the process required to 

comply with the provisions of the Act. . . . 

Second, there are sometimes longer delays 

attributable to non-administrative, 

objectively reasonable causes like 

understandable mistakes of law and 

interference from unexpected, extrinsic 

events beyond the government's control. 

969 F.2d at 1488.5 We also stated in Carson that a "satisfactory 

explanation is usually based on a mistaken view of the law on 

 

4. In the present dispute, the government does not rely on a 

mistaken view of the law to explain why it delayed sealing the 

tapes. Given that the focus of our decision in Vastola III was 

on whether the prosecutor's mistaken view of the law was 

objectively reasonable, we need not discuss that case in detail. 

5. It is important to emphasize that this first type of delay 

concerns the short delays related directly to readying the tapes 

for sealing. In Carson, we noted that "a local United States 

Attorney can obtain a sealing order simply by presenting the 

appropriate papers and tapes to the supervising judge. Other 
what triggers sealing, but on occasion it can be supplied by an 

extraneous unforeseen emergent situation." 969 F.2d at 1487 

(citing Ojeda Rios, 495 U.S. at 266 and United States v. Massino, 

784 F.2d 153, 157 (2d Cir. 1986)). 

 In Carson, we held that the government offered a 

satisfactory explanation for the delay in sealing certain tapes 

based on the prosecutor's mistaken view of the statute's sealing 

requirements. 969 F.2d at 1493. However, with regard to a 

second set of tapes, we rejected the explanation for the delay as 

unsatisfactory. The thirty-four day delay in sealing these tapes 

was caused by the government's sending them from New Jersey to 

Washington, D.C., to enhance their audibility. Id. at 1497. 

Finding that this delay was caused by neither a mistaken view of 

the statute's requirements nor by an extraneous unforeseen 

emergent situation, we held that the second set of tapes must be 

suppressed. 

B. 

 With this background, we now turn to the present 

dispute. As a preliminary matter, we address the assertion put 

forth by Quintero and Gonzalez-Rivera that the August tapes 

should be suppressed because they were not sealed until the 

eleventh day after the initial wiretap authorization expired on 

August 30, 1991. In Carson, we held that the government's 

(..continued) 

than gathering the tapes, putting them in boxes and taking the 

tapes to the supervising judge, the record discloses no other 

necessary steps to sealing." 969 F.2d at 1489. 
obligation to seal tapes under § 2518(8)(a) does not arise until 

the termination of the final extension of the order. 969 F.2d at 

1487 (language in § 2518(8)(a) which states that tapes must be 

sealed "immediately upon the expiration of the period of the 

order, or extensions thereof" represents "a Congressional 

determination that tapes secured under one order need not be 

sealed while surveillance is being conducted under a related 

order that may be considered an 'extension.'"). We have 

determined that a court's authorization to extend a wiretap 

beyond the initial authorization is generally limited to taps 

involving the same location, United States v. Vastola, 915 F.2d 

865, 874 (3d Cir. 1990) (Vastola II), cert. denied, 498 U.S. 1120 

(1991).6 

 The extensions authorized here were clearly a 

continuation of the initial authorization to tap Paz's cellular 

phone. None of the defendants have asserted that the first or 

second extension constituted anything other than a continuation 

of the initial authorization. Consequently, the August tapes did 

not have to be sealed until the termination of the entire wiretap 

operation on October 29, 1991. Given the fact that the August 

tapes were sealed on September 10, 1991, long before the wiretap 

terminated on October 29, 1991, the district court properly 

admitted the August tapes. This same result applies to the 

 

6. Under the facts of the present case, we now perforce expand 

that interpretation of "extension" to include taps involving a 

designated cellular telephone. 
September tapes, which were sealed on October 4, 1991, again long 

before October 29, 1991. Our focus, therefore, is on the October 

tapes. 

 The government concedes that it failed to seal the 

October tapes immediately: "Regarding the October tapes, the 

government concedes that these tapes were not sealed as soon as 

administratively practical under Carson and Vastola III. This 

Court must then determine if the October tapes are nonetheless 

admissible because the delay was 'objectively reasonable.'" 

 In order to assess whether the government has supplied 

a satisfactory explanation for the delay in sealing the October 

tapes, we are required under Ojeda Rios to examine the reasons 

supplied by the government to the district court. In addition, 

we held in Vastola III that the government "must prove the actual 

reason for the sealing delay rather than an excuse for some 

ulterior purpose or administrative bungle." 989 F.2d at 1323. 

See also Ojeda Rios, 495 U.S. at 267 ("a 'satisfactory 

explanation' within the meaning of [the statute] cannot merely be 

a reasonable excuse for the delay; it must also reflect the 

actual reason for the delay.") (O'Connor, J., concurring, joined 

by Blackmun, J.). 

 On the first day of the trial, defendants moved to 

suppress the tapes based on the government's failure to comply 

with the statute's sealing requirement. At the hearing on the 

motion, FBI agent Michael McGowan, who headed the investigation, 
testified that he believed "part of the delay" in sealing was 

because at the end of the October authorization period both of 

the Assistant United States Attorneys ("AUSA"s) working on the 

case "were involved in separate trials." Hearing at 57. When 

asked on cross-examination what was the other reason for the 

delay, McGowan testified that "I don't know what the Judge's 

appointment was when he told the U.S. Attorney to appear. We 

don't contact the Judge. We go through the U.S. Attorney's 

office." Id. Later in the hearing, AUSA Carlos Suddath, who was 

one of the two prosecutors working on the case, asserted that 

McGowan's testimony supported the contention that the government 

had provided a satisfactory explanation for the delay. He noted 

that both he and the other AUSA working on the case, Thomas 

Martir, were occupied with other trials. Suddath agreed with the 

district court that his trial was on the same floor as Judge 

Giles's chambers but explained the delay in sealing by stating 

that "we also must fit in with the Judge's schedule." Id. at 70. 

 Because the issue of suppressing the tapes was raised 

for the first time that day, the district court allowed the 

prosecution time to file a supplemental brief, opposing the 

defendants' motion to suppress. The reasons, given by the 

government in its brief, mirrored those given at the initial 

hearing on the motion. The government noted that from October 15 

to November 15, 1991, AUSA Suddath was on trial before Judge 

Kelly in a major criminal trial. During the "first two weeks" of 
November 1991 AUSA Martir was involved in "substantial pretrial 

preparation in a complex defense procurement fraud case" which 

was scheduled to begin on December 3, 1991. The government 

stated that this involved a substantial amount of time outside 

the office as Martir interviewed approximately twenty potential 

witnesses. In addition, Martir was responsible for two 

sentencing hearings during the first week in November, a 

detention hearing during the second week in November, and the 

preparation of the complaints and arrest warrants for Santiago 

Gonzalez and Mordago. The government also noted that Judge Giles 

was unavailable between September 30 and November 4, 1991, 

because he was sitting by designation in the Virgin Islands. 

Although finding the delay in sealing the October tapes "somewhat 

more troublesome" than the delays associated with the August and 

September tapes, the district court held the October tapes 

admissible. Dist. Ct. Order at 4. After subtracting the four 

days in which Judge Giles was unavailable, four weekend days, and 

the Veteran's Day holiday, the district court concluded that the 

delay in sealing the October tapes amounted to twelve working 

days.7 The district court held that "since the delay here falls 

 

7. In fact, the time period between October 29 and November 18, 

1991, included three weekends which, using the district court's 

methods, would amount to a delay of ten working days. We are 

aware that we discounted weekend days in Carson in the situation 

of a taping order expiring on a Wednesday and tapes being sealed 

the next Monday and of an order expiring on a Thursday and the 

tapes being sealed the next Wednesday. We held there that the 

tapes were sealed immediately. 989 F.2d at 1498. However, 

eliminating the days of one intervening weekend is very different 

from eliminating the days of multiple intervening weekends. We 
within the ambit of the rough rule of thumb suggested in Carson, 

the tapes are admissible." Id. at 7. 

 We interpret the district court's order to hold that 

the October tapes had been sealed "immediately" under the 

statute. Thus, the district court did not address the question 

of whether there was a satisfactory explanation for the 

government's delay in sealing the tapes.8 However, because the 

government concedes that the October tapes were not sealed 

immediately, a conclusion with which we agree, the question now 

turns to whether the government has offered a satisfactory 

excuse. Because this is a question of law subject to plenary 

review, and the record before us is complete, we are in a 

position to decide it. 

C. 

 The primary reason offered by the government for the 

delay in sealing the October tapes is the workload of the AUSAs 

responsible for prosecuting the case. In support of its 

assertion that a prosector's workload can serve as a satisfactory 

(..continued) 

do not address here the propriety of subtracting the days of 

multiple intervening weekends in determining the length of the 

delay. 

8. In making its finding, the district court did hold that it 

was permissible to include the days Judge Giles was unavailable. 

The district court made no substantive findings, however, with 

regard to the work schedules of the two AUSAs prosecuting the 

case. The court made passing reference to the fact that the 

October tapes were sealed "the first working day after AUSA 

Suddath completed a month-long trial." Dist. Ct. Order at 4. No 

mention was made of AUSA Martir. 
excuse, the government points to language in Carson, 969 F.2d at 

1498, and decisions from several other courts of appeal. See

United States v. Pedroni, 958 F.2d 262 (9th Cir. 1992) (fourteen 

day delay permitted); United States v. Rodriguez, 786 F.2d 472 

(2d Cir. 1986) (same); United States v. Scafidi, 564 F.2d 633 (2d 

Cir. 1977) (7 day delay permitted), cert. denied, 436 U.S. 903 

(1978).9

 A review of these cases reveals that there are 

substantial differences between them and the present dispute. 

Moreover, the only language we find in Carson which suggests 

support for the proposition asserted by the government that 

"[t]his Court . . . has recognized that personnel shortages, 

including the trial schedule and work responsibilities of a 

prosecutor, may be a 'satisfactory explanation'" is the 

statement: 

 We recognize that there may be 

limited special circumstances apart from the 

administrative practicalities of obtaining a 

sealing order that would justify some delay. 

 

9. The government's brief also directs us to our opinion in 

Vastola III, 989 F.2d at 1327-28 n.1 (view of Nygaard, J.) in 

support of the government's assertion that "personnel shortages, 

including the trial schedule and work responsibilities of a 

prosecutor, may be a 'satisfactory explanation' for a sealing 

delay." The dispute in Vastola III involved the question, inter 

alia, of whether the government's mistaken view of the law was an 

objectively reasonable one at the time. The dispute did not 

involve a question of whether administrative difficulties or 

attorney caseload might be a satisfactory explanation for a delay 

in sealing tapes. We regard the language in footnote 1 

concerning an attorney's caseload as dictum, given that such 

language was not relevant to our decision in Vastola III. 
969 F.2d at 1498. However, in Carson we then went on to discuss 

United States v. Massino and the adequacy of an excuse if the 

need for it was brought about by "unusual and unforeseeable" 

circumstances -- not by normal, albeit heavy, work schedules. 

 In Massino, the defendants moved to suppress 

surveillance tapes which the government sealed after a delay of 

fifteen days. The government claimed that the delay was caused 

by the need to divert resources for "an immediate, sensitive and 

comprehensive investigation into a 'leak' of information" 

concerning the electronic surveillance of the defendants. 784 

F.2d at 154 n.2. The government, fearful that the leak would 

jeopardize its ongoing investigation and expose confidential 

informants to danger, devoted all its resources to finding the 

leak. 

 While the court of appeals in Massino expressed concern 

about the length of delay, it ultimately held that the tapes 

should not be suppressed. Id. at 158. The court based its 

decision, in part, on the "lack of foreseeability that a large 

investigation would be needed" and that the leak represented an 

"urgent matter." Id. Massino then does represent a "limited 

special circumstance" in which a delay attributable to events 

unrelated to the sealing of the tapes is found to be a 

satisfactory explanation. 

 In Carson, we noted that "on occasion [a satisfactory 

explanation] can be supplied by an extraneous unforeseen emergent 
situation." 969 F.2d at 1487 (citing Massino, 784 F.2d at 157). 

However, we held that the facts presented in Carson did not 

constitute a satisfactory explanation. The need to enhance the 

audibility of the tapes was "readily foreseeable and could just 

as readily become routine." 969 F.2d at 1498. We distinguished 

Massino, where there was "an unexpected, urgent need for 

investigation of a damaging leak. Such a situation is unusual 

and unforeseeable." Id. 

 We find the excuse offered by the government in the 

present case closer to the excuse in Carson than to that in 

Massino. AUSA Suddath's trial was foreseeable. In fact, he had 

been working on the same trial for two weeks prior to the 

termination of the surveillance operation. Similarly, there was 

nothing in AUSA Martir's caseload that was unusual. The 

government asserts that Martir's caseload increased unexpectedly 

when Santiago Gonzalez and Mordago were arrested on November 8, 

1991. This increase is more consistent with the expected flow of 

cases into the United States Attorney's office than it is with 

the type of emergency described in Massino. In addition, the 

government acknowledged during oral argument that it could have 

assigned any one of the many AUSAs in the Eastern District to 

process the sealing of the tapes before Judge Giles. The 

government also conceded that the sealing was a "relatively 

simple procedure under the facts here." In response to a 
question concerning the mechanics of a sealing, the government 

responded: 

 They are very limited, your Honor. My 

estimate to the court is that in terms of the 

total time for example for that to be 

accomplished in front of the district court 

judge, we're not talking about more than 

fifteen minutes. It is simply a matter of 

our assembling the tapes, putting them into 

boxes, taking them over to the courthouse, 

presenting them to the judge with a sealing 

order. The tapes are physically sealed in 

front of the judge. He initials the corners 

of the parcel, the box in which they are 

sealed to make sure that it can't be opened 

without its being noticed. We then take them 

down to the clerk's office where they are 

given to a designated clerk and I believe 

kept in the district court clerk's safe. 

 The other cases cited by the government in support of 

its position are also distinguishable. The government cites 

Rodriguez for the proposition that a fourteen day delay was 

permitted when the supervising attorney was preoccupied with 

another trial. A closer reading of Rodriguez reveals that this 

excuse was but one of many factors relied upon by the court in 

vacating the district court's suppression order. The court of 

appeals credited the government's explanation that the "bulk of 

the delay was caused in part" by the prosecutor's mistaken belief 

that a comprehensive report had to be filed at the time the tapes 

were sealed. 786 F.2d at 478. While the prosecutor's workload 

in Rodriguez was a factor in finding time to prepare the report 

she mistakenly believed was needed, the primary rationale for the 
delay was the belief that a comprehensive report was needed in 

the first place, an excuse which the government does not claim is 

applicable here. 

 The government cites Scafidi for the proposition that a 

seven day delay was permissible when the prosecutor was 

preoccupied with an upcoming trial. While this was the only 

reason provided for the delay, the court held that the government 

"presented a satisfactory explanation for this short delay." 

Scafidi, 564 F.2d at 641 (emphasis added). As we noted in 

Carson: "The length of a sealing delay is a relevant factor in 

considering whether an explanation is satisfactory," 969 F.2d at 

1498 (citing United States v. McGrath, 622 F.2d 36, 42 (2d Cir. 

1980)). We are not faced with a seven day delay in the present 

case. We do not, therefore, need to determine if such a delay 

would be acceptable in this circuit. 

 Perhaps the closest case to the present is Pedroni, in 

which the government offered two reasons for the fourteen day 

delay in sealing the tapes: the heavy workload of the FBI agent 

responsible for preparing the tapes for sealing and the 

unavailability of the judge. Notwithstanding the fact that the 

reasons provided by the government in Pedroni are comparable to 

the explanations here, our decision in Carson steers us away from 

delays caused by a prosecutor's ordinary responsibilities, 

despite how onerous those ordinary responsibilities may be. To 
the extent that Pedroni supports the government's position, we 

decline to follow it. 

 In summary, we conclude that a prosecutor's routine 

duties, hectic as that routine may be, are not a satisfactory 

explanation for failing to comply with the immediacy requirement 

of § 2518(8)(a). Were we to agree with the government, we would 

be rendering extraordinary that which is ordinary. We decline to 

do so. 

D. 

 The second rationale offered by the government is that 

Judge Giles's unavailability should be considered a satisfactory 

explanation for a part of the delay. The courts of appeal which 

have considered the question of whether a judge's absence can 

serve as a satisfactory excuse have reached opposite conclusions. 

Compare United States v. Pedroni, 958 F.2d 262, 266 (9th Cir. 

1992) ("unavailability of the issuing or supervising judge may 

constitute a satisfactory explanation for a sealing delay"); with

United States v. Rodriguez, 786 F.2d 472, 476 (2d Cir. 1986) 

(government's reliance on the absence of issuing judge to explain 

part of the delay is unacceptable given prior Second Circuit 

decisions which made clear that other judges could properly seal 

tapes). In reaching its decision in Pedroni, the Ninth Circuit 

expressly relied upon prior Second Circuit decisions which held 

that a judge's unavailability could serve as a satisfactory 

explanation for a delay in sealing. See United States v. Fury, 
554 F.2d 522, 533 (2d Cir. 1977) (six day delay reasonably 

explained by unavailability of issuing judge who was on 

vacation), cert. denied, 436 U.S. 931 (1978); United States v. 

Poeta, 455 F.2d 117, 122 (2d Cir.) (thirteen day delay approved 

where agents assumed issuing judge must seal tapes), cert. 

denied, 406 U.S. 948 (1972). However, subsequent to Fury and 

Poeta, the Second Circuit noted in United States v. Vazquez, 605 

F.2d 1269, 1280 n.25 (2d Cir.), cert. denied, 444 U.S. 981 

(1979), that "tapes sealed by a judge other than the 'issuing 

judge,' because of the absence or unavailability of the latter, 

are considered properly sealed." This language in Vazquez was 

the express basis for the Second Circuit's later decision in 

Rodriguez that it would no longer consider a judge's 

unavailability as a satisfactory excuse for a sealing delay. 

 Judge Giles, who had approved the initial authorization 

and both extensions to conduct electronic surveillance of Paz's 

cellular phone, was unavailable before November 4, 1991, because 

he was sitting in the Virgin Islands. We find, however, that 

the fourteen day delay after Judge Giles's return is excessive 

under the standards of Ojeda Rios. For this reason, we do not 

need to, and we will not, decide whether the absence of the 

supervising judge, in and of itself, is sufficient excuse for any 

delay in sealing. Nevertheless, we do note in this regard, that 

any judge in the district can order the tapes sealed, as did 

Judge Kelly on October 10, 1991. 
E. 

 The final argument for admissibility of the tapes 

arises from the fact that the FBI exercised elaborate and 

painstaking procedures to insure their integrity. As the 

district court found, the tapes remained "sealed (although not 

officially under judicial holograph), locked away in secure 

evidence storage, unbudged and untouched" prior to the judicial 

sealing and the "actual integrity of the tapes has not been 

challenged." Dist. Ct. Order at 6. But as the Supreme Court 

held in Ojeda Rios, "[t]o hold that proof of nontampering is a 

substitute for a satisfactory explanation is foreclosed by the 

plain words of the sealing provision." 495 U.S. at 264-65. 

Because we find that the government has failed to offer a 

satisfactory explanation for the delay in sealing the October 

tapes, § 2518(8)(a)'s "explicit exclusionary remedy" must be 

employed. Id. at 260. 

IV. 

 Given our decision that the October tapes should have 

been suppressed, we now turn to the question of whether the 

admission of the October wiretap evidence was harmless error. At 

oral argument, we invited the parties to submit briefs addressing 

the issue of harmless error. We have carefully reviewed these 

submissions. 

 As a preliminary matter, the convictions for use of a 

communication facility, which are based on communications 
intercepted and recorded on the October tapes, will be reversed. 

Quintero was convicted of three such counts: Count Seventeen, 

based on an October 11, 1991, telephone call; Count Nineteen, 

based on an October 23, 1991, telephone call; and Count Twenty, 

based on an October 26, 1991, telephone call. Santiago Gonzalez 

was convicted on Count Twenty-One, based on an October 28, 1991, 

telephone call. Mordago was convicted on Count Eighteen, based 

on an October 12, 1991, telephone call. Without the October 

tapes, the government concedes that there is no evidence to 

sustain the defendants' convictions on these counts.10

 We now turn to those convictions which require a more 

extensive review of whether the admission of the October tapes 

constituted harmless error. In making this assessment, we first 

must determine whether the error alleged is constitutional or 

nonconstitutional. See United States v. Grayson, 795 F.2d 278, 

290 (3d Cir. 1986) (finding that challenged jury instruction did 

not affect any possible constitutional right, court applied 

 

10. In its supplemental brief the government states that Maria 

Rodriguez's conviction on the telephone count should be reversed 

if the October tapes are suppressed. Rodriguez was indicted on 

two counts of use of a telephone to facilitate the conspiracy in 

Count One. Count Thirteen was based on a telephone call on 

September 5, 1991, and Count Fifteen was based on a telephone 

call on October 10, 1991. At trial, Rodriguez was convicted on 

Count Thirteen, but acquitted on Count Fifteen. This result is 

confirmed in both the docket sheet and sentencing report signed 

by the district court. Given the fact that Rodriguez was not 

convicted on the telephone related count based on her October 10, 

1991, conversation with Paz, there is no need to reverse. Her 

convictions will be discussed infra. 
"highly probable" standard of appellate review to assess the 

question of harmless error), cert. denied, 481 U.S. 1018 (1987). 

 We find that the dispute here involves a claim of 

nonconstitutional error in that it is based solely on a violation 

of § 2518(8)(a). Therefore, in deciding whether the admission of 

the October tapes constituted harmless error, we must evaluate 

whether it is "highly probable that the evidence did not 

contribute to the jury's judgment of conviction." Government of 

Virgin Islands v. Toto, 529 F.2d 278, 284 (3d Cir. 1976). "'High 

probability' requires that the court have a 'sure conviction that 

the error did not prejudice the defendant,' but need not disprove 

every 'reasonable possibility' of prejudice." Grayson, 795 F.2d 

at 290 (quoting United States v. Jannotti, 729 F.2d 213, 219-220 

n.2 (3d Cir.) cert. denied 469 U.S. 880 (1984)). We will review 

each defendant's convictions applying this standard. 

 A. Jose Gonzalez-Rivera

 The jury found Jose Gonzalez-Rivera guilty of one count 

of conspiracy to distribute in excess of five kilograms of 

cocaine (Count One), one count of engaging in a CCE (Count Two), 

two counts of possession with intent to distribute cocaine 

(Counts Five and Six), and one count of use of a communication 

facility to facilitate the conspiracy in Count One (Count Eight). 

None of Gonzalez-Rivera's convictions were based directly on 

conversations recorded on the October tapes. 
 Gonzalez-Rivera's conviction on the telephone count 

(Count Eight) was based on a conversation between Paz and 

Gonzalez-Rivera on August 9, 1991. We have held that the August 

tapes were admissible. Admission of the October tapes was 

clearly harmless as to the conviction on this count. 

 The evidence on the remaining counts against GonzalezRivera was substantial. Count Five was based on the fifteen 

kilograms of cocaine seized by the New Jersey police when Cruz 

and Rosario were stopped on the New Jersey Turnpike on June 26, 

1991. Paz testified that he and Rosario had travelled to New 

York in late June 1991 in order to receive this cocaine from 

Gonzalez-Rivera. Paz testified that, although he returned to 

Philadelphia before the cocaine had been delivered, GonzalezRivera called him to report that it had arrived. 

 Count Six was based on the seizure of six kilograms of 

cocaine from the residence of Lopez-Ortega on July 15, 1991. 

Regarding this cocaine, Paz testified that he had travelled to 

New York in a load car rented from MRK in order to pick up a 

large quality of cocaine from Gonzalez-Rivera. Paz further 

testified that he accepted twenty kilograms of cocaine from 

Gonzalez-Rivera but that he did not like the quality of the 

remaining six kilograms, nor would they fit into the concealed 

compartment of his car. According to Paz, Gonzalez-Rivera called 

Ortega and asked that he remove the remaining six kilograms of 

cocaine from Gonzalez-Rivera's residence because Gonzalez-Rivera 
was concerned that law enforcement officials were conducting 

surveillance of him and Paz. Surveillance did in fact establish 

that Ortega then transported a gym bag from Gonzalez-Rivera's 

residence in the Bronx to Lopez-Ortega's residence in Queens, New 

York. A gym bag containing six kilograms of cocaine was seized 

from Lopez-Ortega's residence that evening. Because of the 

strong evidence in support of Counts Five and Six, we find that 

the introduction of the October tapes was clearly harmless as to 

Gonzalez-Rivera's convictions on these counts. 

 Gonzalez-Rivera asserts, however, that the admission of 

the October tapes constituted prejudicial error in regard to the 

conspiracy and CCE convictions (Counts One and Two) because two 

telephone conversations, recorded in October, were used to 

establish his connection to Guillermo (a/k/a Memo), a drug 

supplier in Medellin, Colombia. Gonzalez-Rivera asserts that 

these conversations supported the government's contention that he 

was a "leader of a Medellin cocaine cartel 'cell' in New York 

City" as alleged in Count One. 

 Gonzalez-Rivera was not recorded on either of these 

October tapes. Both of these calls involved Paz and Rodriguez 

and took place on October 11, 1991. During the first 

conversation, Rodriguez relayed a message from Gonzalez-Rivera to 

Paz for Paz to call Guillermo in Medellin, Colombia, regarding a 

$6,000 payment that Guillermo was demanding. Rodriguez supplied 

Paz with Guillermo's phone number in Medellin. Immediately after 
his conversation with Rodriguez, Paz attempted to call Guillermo. 

When Paz supplied Guillermo's number to the operator, the 

operator told Paz that the call could not be billed to Paz's 

cellular telephone. At this point, the call was interrupted on 

"call waiting" by Rodriguez. During this second conversation, 

Rodriguez informed Paz that Gonzalez-Rivera wanted Paz to call 

him immediately instead of talking to Guillermo. Paz's trial 

testimony confirmed the content of these conversations. 

 Gonzalez-Rivera's defense depended in part on his own 

testimony that he was not a member of the Medellin cartel. On 

direct examination, Gonzalez-Rivera testified that Memo was a 

loan shark in New York from whom Gonzalez-Rivera had borrowed 

$6,000.11 In an effort to impeach Gonzalez-Rivera's testimony 

 

11. Gonzalez-Rivera testified on direct examination as follows: 

 Q: There was great deal of testimony about a 

guy named Memo, do you remember that? 

 A: Yes, I remember the man. 

 Q: Tell the jury who Memo is? 

 A: Memo is a big shot in New York that lent 

me money. He lent me six thousand dollars. 

 Q: Is Memo a loan shark? 

 A: Yes. 

 Q: Now, when did you talk to Memo about 

getting six thousand dollars? 

 A: After Mr. Paz, he owed me the money. 

 Q: After Mr. Paz promised you the six 

thousand dollars? 
concerning Memo, the government on cross-examination questioned 

Gonzalez-Rivera with regard to the two telephone conversations.12 

(..continued) 

 A: Yes. 

Trial Transcript ("TT") at 51 (Sept. 16, 1992). 

12. The government cross-examined Gonzalez-Rivera as follows: 

 Q: And Memo is this loan shark who lives in the Bronx? 

 A: Yes. 

 Q: You have been feeding Paz's ego by saying 

that he lives in Colombia? 

 A: No. 

 Q: You never said that? 

 A: No. 

 Q: You never told Maria Rodriguez to tell Paz 

to call Memo in Colombia? 

 A: Yeah, I told Maria. I told Maria, but I 

gave a fax number. He never went through 

with it because he never talked to me, Memo. 

 Q: You heard the phone call where he tried to 

call Colombia? 

 A: Yeah. You hear, he never talked to Memo. 

 Q: Did you hear the operator say that the 

billing was denied? 

 A: Yes. 

 Q: So he could not charge the call? 

 A: Yes, but he never got through with it. I 

know that that's not a telephone number for 

Memo. 
In addition, the government made reference to the conversations 

during its closing argument as evidence of Gonzalez-Rivera's 

connection to Medellin. 

 Gonzalez-Rivera asserts prejudice in that the telephone 

conversations provided confirmation of Paz's testimony on direct 

examination that Gonzalez-Rivera received large quantities of 

cocaine from suppliers in Medellin. He contends that the 

combined effect of the use of these recordings constituted 

prejudicial error leading to his conviction on the conspiracy and 

CCE counts. 

 In conducting the harmless error analysis, we must keep 

in mind that the government produced admissible testimony by Paz, 

a participant in the calls, about the calls. However, would the 

jury have credited Paz's uncorroborated version of the calls 

without any other support? We must consider whether the jury's 

exposure to the content of the calls induced the jurors to give 

undue credit to Paz's testimony, rather than to GonzalezRivera's. 

(..continued) 

 Q: Why would you give a telephone number of a 

loan shark that you met in the Bronx? Why 

did you give a number to Medellin in Colombia 

to Paz? 

 A: That's what they wanted to hear, Paz. 

 Q: This was part of you feeding his ego? 

 A: Yes. 

TT at 114-15 (Sept. 16, 1992). 
 There is precedent, however, to support the admission 

of the content of the tapes for impeachment purposes even if the 

tapes were inadmissible on the merits of the government's case. 

In view of Gonzalez-Rivera's testimony on direct examination 

about his relationship with Memo, the tapes of the calls could 

have been used to attack Gonzalez-Rivera's credibility. Even 

though the two conversations should not have been admitted during 

the government's case-in-chief, unlawfully obtained evidence may 

be used to impeach the direct testimony a defendant gives at 

trial. See Walder v. United States, 347 U.S. 62, 65 (1954). In 

Walder, the Supreme Court held that it was permissible for the 

government to use testimony regarding drugs obtained in an 

illegal search to impeach the testimony of the defendant that he 

had never possessed any narcotics. 

 On direct examination here, Gonzalez-Rivera testified 

that Memo was a loan shark in New York to whom Gonzalez-Rivera 

owed $6,000. As a result, the issue of Gonzalez-Rivera's 

relationship to Memo was clearly brought into question by 

Gonzalez-Rivera's direct testimony. Once he put his relationship 

to Memo in issue by offering the loan shark explanation, the 

government was entitled to rebut this explanation by showing that 

Gonzalez-Rivera's testimony was untrue. Although the content of 

these two tapes was admissible only to impeach Gonzalez-Rivera's 

testimony about Memo, and not admissible as direct evidence of 

Gonzalez-Rivera's involvement with Memo, it was precisely this 
aspect of the testimony that Gonzalez-Rivera complains of, i.e., 

that the jury believed Paz, rather than Gonzalez-Rivera, on the 

question of Gonzalez's relationship with Memo and the Medellin 

cartel. Because this element of the evidence, the impeachment 

factor, was permissible under the circumstances, we find the 

spill over into the merits of the government's case to be 

harmless.13

 Moreover, our review of the record indicates that the 

other evidence, tying Gonzalez-Rivera to the Medellin cartel, was 

 

13. The use of the October calls to impeach Gonzalez-Rivera is 

further supported by his testimony during the initial phase of 

the government's cross-examination. See United States v. Havens, 

446 U.S. 620 (1980). On cross-examination, Gonzalez-Rivera 

testified that many of his telephone conversations with Paz 

recorded by the government during August and September 1991 

concerned $6,000 that Paz owed him from an earlier debt, money 

which Gonzalez-Rivera testified he planned to use to pay off 

Memo. In Havens, the Supreme Court considered whether "evidence 

suppressed as the fruit of an unlawful search and seizure may 

nevertheless be used to impeach a defendant's false trial 

testimony, given in response to proper cross-examination, where 

the evidence does not squarely contradict the defendant's 

testimony on direct examination." 446 U.S. at 621. While Walder

is more on point to the present case because Gonzalez-Rivera did 

testify as to Memo's identity on direct examination, Havens is 

also instructive. The Supreme Court held that "a defendant's 

statements made in response to proper cross-examination 

reasonably suggested by the defendant's direct examination are 

subject to otherwise proper impeachment by the government, albeit 

by evidence that has been illegally obtained and that is 

inadmissible on the government's direct case, or otherwise, as 

substantive evidence of guilt." Id. at 627-28. Not only could 

the government use the fact of the two calls to impeach the 

defendant's direct testimony that Memo was a loan shark in New 

York, such evidence could have been used to impeach the 

defendant's credibility based on his testimony during crossexamination. 
substantial. Paz testified that Gonzalez-Rivera served as one of 

his major cocaine suppliers. In describing his trip to GonzalezRivera's residence in April, 1991, to pick up fifteen kilograms 

of cocaine from Gonzalez-Rivera and Cruz, Paz testified that 

Gonzalez-Rivera received his cocaine from Medellin. 

 Q: Now, you've testified that with respect to 

Jose Gonzalez-Rivera, that the cocaine that 

he received came from Medellin, Colombia? 

 A: Yes, sir. 

 Q: How did you know that? 

 A: Because the telephone calls that he was 

making to Colombia, he made a lot of calls in 

front of me. 

 Q: And what were those calls? What was discussed 

during those calls that you were present during that 

period? 

 A: Well, when we lost 15 kilos on the turnpike, that 

was one of the things that he had to call down there, 

to Medellin to talk to his bosses about, and the other 

one was some money -- they stole some merchandise from 

me in Philadelphia. 

 Q: When you refer to merchandise, what are 

you referring to? 

 A: Cocaine. 

 Q: Now, did you know the names of the 

individuals that Jose Gonzalez would speak to 

in Colombia? 

 A: Yes. Guillermo. 

 Q: Did you ever get to know an individual by 

the name of Memo? 

 A: No, I didn't meet him. I did not speak to 

him, but Jose did speak to me about him. 
 Q: Who was Memo to Jose Gonzalez-Rivera? 

 A: His boss. 

 Q: His boss for what? 

 A: For cocaine. 

 . . . 

 Q: So Guillermo and Memo are one in [sic] the same? 

 A: Yes, sir. 

TT at 27-29 (Sept. 2, 1992; Afternoon Session). 

 The government presented other evidence of GonzalezRivera's connection to Memo: During a conversation recorded on 

August 1, 1991, Paz and Gonzalez-Rivera discussed Cruz's arrest 

and the seizure of the fifteen kilograms of cocaine; Paz 

testified that they discussed the need to send Cruz's arrest 

papers to Memo in Medellin, in an effort to justify the loss of 

the fifteen kilograms; during a conversation recorded on August 

17, 1991, Paz and Gonzalez-Rivera discussed a cocaine 

transaction; when Paz informed Gonzalez-Rivera that he could get 

a very high price for cocaine, Gonzalez-Rivera responded that he 

was "gonna call that man down south"; Paz testified that he 

understood the defendant to be referring to Memo in Medellin.14 

Paz testified that he understood these references to be to Memo. 

 

14. This was one of several instances in which Gonzalez-Rivera 

makes reference to a "man down south" in connection with a 

payment or debt for cocaine or in connection with a drug 

transaction. 
 In another telephone conversation, recorded on 

September 21, 1991, Gonzalez-Rivera told Paz that Gonzalez-Rivera 

had given up a piece of property in Colombia as security for a 

debt of $34,000 that Paz owed to Gonzalez-Rivera and that 

Gonzalez-Rivera in turn owed to "that man." Paz testified that 

Gonzalez-Rivera owned a condominium and large farm in Medellin. 

 In total, Paz testified in regard to fifteen telephone 

conversations, between himself and Gonzalez-Rivera, which were 

recorded by the government wiretap between August 1 and October 

29, 1991. Thirteen of these recordings were properly admitted. 

The jury had the opportunity to listen to each of these 

conversations and at the same time to review a transcript of 

them. Paz pointed out specific portions of each telephone call 

in which he and Gonzalez-Rivera discussed their drug business. 

 The government also presented the testimony of FBI 

agent Harold Clouse as an expert witness in the field of drug 

jargon analysis. Clouse reviewed the entire set of tape 

recordings and testified as to eight telephone conversations 

between Paz and Gonzalez-Rivera. Of these eight calls, only one 

was recorded during October. The other seven were properly 

admitted. 

 Clouse testified that a majority of these calls were 

drug related. For instance, he testified that a telephone 

conversation between Paz and Gonzalez-Rivera, recorded on August 

14, was a drug related call in which Gonzalez-Rivera quoted Paz a 
price for a kilogram of cocaine and they discuss how much Paz 

could charge his buyers for it. Clouse testified that there were 

other references in this conversation to cocaine which GonzalezRivera planned to supply to Paz. In addition, Clouse testified 

that three days later, on August 17, Paz and Gonzalez-Rivera 

engaged in a drug related conversation in which they discussed 

the price of a kilogram of cocaine. In connection with this 

telephone call, Paz described how the cocaine he received from 

Gonzalez-Rivera was supplied to Gonzalez-Rivera: A call would be 

made to an individual in Colombia, that person would call New 

York to authorize delivery of cocaine, and the cocaine would be 

delivered the next day. Asked how he knew about this 

arrangement, Paz responded that Gonzalez-Rivera had explained it 

to him. Paz testified that, after these arrangements were made, 

he would pick up his cocaine at Gonzalez-Rivera's residence in 

the Bronx. 

 In addition, FBI agent McGowan testified that at the 

time of Gonzalez-Rivera's arrest, Gonzalez-Rivera had Memo's 

telephone number handwritten on several pieces of paper in his 

wallet. This number corresponded to a telephone number that, at 

the time of Paz's arrest, Paz had in his address book under the 

name of Guillermo. 

 Despite this evidence, Gonzalez-Rivera asserts that the 

admission of the two October calls constituted prejudicial error. 

It is true that the government made reference to the two October 
calls during its closing argument as evidence of GonzalezRivera's connection to Medellin. We find, however, that the 

references to these two phone conversations were merely 

cumulative of other substantial evidence connecting GonzalezRivera to this conspiracy. 

 We conclude that, in light of all this evidence, 

Gonzalez-Rivera was not prejudiced by the erroneous admission of 

the October tapes. For that reason, their admission was harmless 

as to his conviction on Counts One and Two. See United States v. 

Jannotti, 729 F.2d at 219-20 (to find error harmless, we must 

have a sure conviction that the error did not prejudice the 

defendant; yet we need not disprove every possibility of 

prejudice). We will uphold Gonzalez-Rivera's convictions on all 

of the counts for which he was convicted. 

 B. Maria Rodriguez

 Maria Rodriguez was convicted of one count of 

conspiracy to distribute in excess of five kilograms of cocaine 

(Count One) and one count of use of a communication facility to 

facilitate the conspiracy in Count One (Count Thirteen). The 

conviction on Count Thirteen was based on a September 5, 1991, 

phone call. Since we have held that the September tapes were 

admissible, the admission of the October tapes was clearly 

harmless error as to Count Thirteen. 

 Turning to the conspiracy conviction, Rodriguez in her 

supplemental brief adopted the arguments advanced by Gonzalez-
Rivera as to the prejudicial effect of the admission of the 

October tapes. The government asserts that the admission of the 

October tapes constituted harmless error based on the substantial 

evidence, excluding the October calls, against Rodriguez. 

 The government's evidence against Rodriguez consisted 

of testimony by Paz and FBI agent Clouse about items seized from 

the defendant at the time of her arrest15 and about five 

telephone conversations between the defendant and Paz. Two of 

the five conversations were recorded in September 1991, with the 

remaining three recorded in October 1991. Paz testified as to 

all five calls and his participation in them. Clouse testified 

as to four of the five calls, identifying each as drug related. 

 The first of these calls was made on September 5. In 

it, Paz and Rodriguez discussed Paz's request for five kilograms 

of cocaine in exchange for $100,000 and of an additional five 

kilograms of cocaine on consignment. Rodriguez asked Paz, "[F]or 

how many are you striking for?" Paz responded, "Okay, tell him 

that we can get five for cash and five on credit for me." Paz 

testified that he had made this telephone call to Rodriguez at 

home because he believed Gonzalez-Rivera's telephone at work was 

being tapped. He further testified that Rodriguez was acting as 

 

15. These items included a receipt for a $25 money order for 

Jose Cruz; the work and beeper numbers for Gonzalez-Rivera; the 

home, beeper, and cellular telephone numbers for Paz; and the 

home phone numbers of Ortega and another codefendant. 
a messenger for Gonzalez-Rivera. Clouse confirmed that this call 

was drug related. 

 During the September 6 call, Paz informed Rodriguez 

that $15,000 from another drug deal had been stolen from him the 

night before at Rodriguez's cousin's house in New York. During 

this conversation, Rodriguez told Paz that she thought he had 

lost "material" or "sugar for coffee." Clouse testified that 

Rodriguez's use of the word "material" was a code word for 

cocaine and that this was a drug related call. 

 Two of the October calls took place on October 11, 

1991. The third October call took place on October 17, 1991. 

During it, Rodriguez urged Paz to call Gonzalez-Rivera. 

Rodriguez expressed concern that Paz and Gonzalez-Rivera were not 

talking to each other, at which point Paz responded that he 

needed work to pay his debts. Clouse identified this as a drug 

related call in which Paz told Rodriguez that he needed cocaine 

to sell. Paz's testimony confirmed Clouse's interpretation. 

 In adopting the prejudicial error argument advanced by 

Gonzalez-Rivera, Rodriguez is essentially asserting that the 

October calls had the effect of tying her to the conspiracy. 

However, we agree with the government that Rodriguez's September 

5, 1991, conversation established her active role in the 

conspiracy. In conducting a harmless error analysis, we need 

not disprove every reasonable possibility of prejudice to the 

defendant. Rather, we shall affirm in those cases in which we 
have a sure conviction that the error did not prejudice the 

defendant. See Jannotti, 729 F.2d at 219-20. In this instance, 

we conclude that the evidence of the September 5, 1991, call and 

the testimony concerning its substance is sufficient to affirm 

Rodriguez's conviction. 

 C. Santiago Gonzalez

 Santiago Gonzalez was convicted of one telephone count 

which was based on the tape of an improperly admitted October 

phone call (Count Twenty-One). The government concedes that his 

conviction on this count must be reversed and we will do so. 

Gonzalez's remaining convictions include conspiracy to distribute 

in excess of five kilograms of cocaine (Count One) and two counts 

of distribution of cocaine (Counts Fourteen and Sixteen). 

 Gonzalez's argument concerning the prejudicial impact 

of the October tapes is, in our view, intertwined with his other 

arguments on appeal. Consequently, we will consider all of his 

contentions together. He advances three major challenges to his 

convictions. 

 First, Gonzalez contends that the district court 

committed plain error when it failed, sua sponte, to sever his 

trial from Joaquin Mordago's once it became clear that "Mordago's 

antagonistic defense prevented [Gonzalez] from receiving a fair 

trial." Gonzalez contends that Mordago's "authorized informant" 

defense was antagonistic to his own defense, thereby presenting 

the jury with no option but to convict at least one of them. 
Gonzalez claims that once Mordago's defense unfolded at trial, 

the district court was required to grant a mistrial and 

severance. 

 Second, Gonzalez asserts that his conspiracy conviction 

should be vacated because there was a variance between the single 

conspiracy charged in the indictment and the evidence presented, 

which demonstrated multiple conspiracies. Gonzalez contends that 

the prejudice resulting from the purported variance was the 

impact it had on the district court's decision to try all of the 

defendants together rather than sever Gonzalez's trial from his 

co-defendants' or later from Mordago's. 

 Third, Gonzalez contends that the admission of the 

October tapes was not harmless error because it supplied the only 

evidence to support the government's contention that Gonzalez was 

part of the single conspiracy alleged in Count One. As a result, 

the admission of the October tapes compounded the purported error 

of the variance between the single conspiracy charged in Count 

One and the multiple conspiracies which Gonzalez claims were 

described at trial. While Gonzalez did not expressly set out the 

prejudicial impact flowing from the admission of the October 

tapes, it is clear from his assertion relating to the "variance" 

challenge that he contends that it was only through the October 

tapes that the government established that Gonzalez was aware 

that Paz had other sources of supply. In sum, Gonzalez asserts 

that these three errors, individually and cumulatively, 
prejudiced his right to a trial separate from co-defendant 

Mordago, given the claim that Mordago presented a mutually 

antagonistic defense. Because we find that Gonzalez was not 

prejudiced in this manner, we hold that his convictions must be 

upheld. 

 i. Gonzalez's Claim of Variance

 A defendant alleging a variance between a single 

conspiracy charged in an indictment and the proof presented at 

trial must demonstrate, first, that there was such a variance 

and, second, that the variance prejudiced one of his substantial 

rights. United States v. Kelly, 892 F.2d 255, 258 (3d Cir. 1989) 

(citing United States v. Schurr, 755 F.2d 549, 553 (3d Cir. 

1985)). However, even if we were to find that Gonzalez has 

demonstrated that a variance existed here, we are not convinced 

that he was prejudiced. 

 First of all, in the matter of the variance, a single 

drug conspiracy may involve numerous suppliers and distributors 

operating under the aegis of a common core group. United States 

v. Theodoropoulos, 866 F.2d 587 (3d Cir. 1989). To establish a 

single conspiracy, the prosecutor need not prove that each 

defendant knew all the details, goals or other participants. See

United States v. Padilla, 982 F.2d 110 (3d Cir. 1992). The 

prosecution must, however, demonstrate that a defendant, charging 

variance, knew that he was part of a larger drug operation. Id.

at 114; Theodoropoulos, 866 F.2d at 594. Gonzalez argues that 
the only way by which the government showed he was aware of the 

larger operation was through two of the October telephone calls. 

However, our review of the record does not support this 

allegation. There was also separate testimony by Paz concerning 

his discussions with Gonzalez about cocaine in New York which 

needed to be treated in order to dry it. Because there was 

evidence through Paz's testimony, which demonstrated that 

Gonzalez was aware of the larger operation, the jury's finding of 

a single conspiracy is supported even without the October tapes. 

Moreover, pursuant to Kelly, demonstrating that a variance 

existed is not enough. Even if there were not admissible 

evidence to establish the single conspiracy, still Gonzalez must 

show prejudice. In his brief, Gonzalez argues that the prejudice 

he suffered from the purported variance was his being tried with 

Mordago: "The prejudice to [Gonzalez] was that even though he 

made a strong case for separating his trial from his codefendants, the district court was naturally reluctant to grant 

the severance due to the fact that [Gonzalez] was charged with 

being part of a single conspiracy. Consequently, he was tried 

with Mordago. Mordago, in presenting his 'authorized informant' 

defense, implicated [Gonzalez] in the drug conspiracy." This 

claimed prejudice is the same as the claimed prejudice resulting 

from Gonzalez's initial challenge, i.e., that the district court 

committed plain error when it failed, sua sponte, to sever 

Gonzalez's trial from Mordago's once it became clear that 
Mordago's antagonistic defense prevented him from receiving a 

fair trial. We will turn, therefore, to that assertion. 

 ii. Gonzalez's Claim of Prejudice

 Gonzalez filed a pretrial motion to sever his case from 

the New York based co-defendants, contending that the government 

would be unable to prove a unified conspiracy and that he would 

be prejudiced by being tried with these co-defendants. This 

motion was denied by the district court and Gonzalez does not 

challenge it on appeal. Rather, Gonzalez now asserts, for the 

first time, that "unforeseen developments" at trial, i.e., 

Mordago's "authorized informant" defense, required that the 

district court grant, sua sponte, a mistrial and severance as to 

Gonzalez. In support, Gonzalez cites our decision in United 

States v. Sandini, 888 F.2d 300, 309 (3d Cir. 1989), cert. 

denied, 494 U.S. 1089 (1990), for the proposition that "[t]he 

district court has to grant severance if it becomes obvious after 

the commencement of trial that joinder is no longer appropriate." 

 As an initial matter, we do not read Sandini as broadly 

as Gonzalez suggests we should. We noted in Sandini that, in 

considering whether a district court committed plain error in 

failing to grant a mistrial and severance sua sponte based on 

developments at trial, "we acknowledge that an appropriate denial 

of a pretrial motion for severance does not preclude a later 

ruling that there should be a severance because of prejudice 

which develops at trial." 888 F.2d at 309 (citing Schaffer v. 
United States, 362 U.S. 511, 516 (1960)). Sandini does not, 

however, announce a mandatory requirement for severance. A 

finding that severance might be appropriate based on developments 

at trial does not compel the conclusion that a severance is 

required whenever a trial fails to unfold as expected. As we 

proceeded to note in Sandini: 

 [I]t is risky business for a judge on his own 

motion to declare a mistrial, as the 

defendant may thereafter contend that he was 

entitled to a completion of the first trial 

so that a retrial is barred by double 

jeopardy principles. Thus, the defendant 

who, without asking for a mistrial gets one, 

will surely argue, and not unreasonably, that 

if he did not, as here, regard the alleged 

error as serious enough even to prompt his 

reaction, a court is effectively granting a 

mistrial over his objection without "manifest 

necessity" so that his retrial is barred. 

Furthermore, we point out that declaring a 

mistrial because of the conduct at trial of a 

codefendant, as opposed to that of the 

government, may well encourage collusive 

conduct by defendants at a joint trial so as 

to set the stage for mistrials and possible 

reversals. The considerations we have set 

forth lead us to approach [defendant's] 

argument with considerable caution. 

Id. 

 As to what was the "unforeseen development," Gonzalez 

contends that he "did not anticipate . . . that Mordago would 

implicate him in drug dealing, and discredit his defense that he 

was a complete stranger to the drug conspiracy." 

 Our review of the record, however, clearly indicates 

that Mordago's defense was anything but unforeseen. More than a 
month before the trial, all defense counsel involved in this 

case, including Gonzalez's, were alerted to Mordago's intention 

to assert an authorized informant defense. On July 20, 1992, 

each defense counsel was sent a copy of the government's response 

opposing Mordago's pretrial motion to disqualify the United 

States Attorney's Office from prosecuting him. Mordago's motion 

was based on the claim that he was acting as a government 

informant in connection with the charges contained in the 

indictment. Govt. App. at 608 ("Consolidated Response in 

Opposition to Defendant's Motions to Disqualify and Compel 

Discovery"). Even a cursory reading of the government's response 

reveals Mordago's intended defense. Early in its response, the 

government stated: "In his motion to disqualify, Mordago claims 

that he was acting as a government informant in connection with 

these charges." Several pages later, the government stated: "In 

his motion to disqualify, Mordago alleges that in light of the 

public authority defense that he intends to assert, AUSA Cohan 

may be called as [a] defense of prosecution witness." Thus, 

Gonzalez's counsel was on notice at least a full month before the 

trial commenced that Mordago planned to assert the government 

informant defense. 

 Notwithstanding this information, Gonzalez failed to 

amend his pretrial motion for severance.16 In addition, not once 

 

16. Gonzalez filed his pretrial motion for severance on May 19, 

1992. This motion did not specifically allege any prejudice from 

being jointly tried with Mordago. Rather, the focus of the 

defendant's motion was his claim that evidence against the New 
during the trial did Gonzalez's counsel object to what he now 

claims were prejudicial errors made by the district court 

relating to Mordago's defense. Rather, Gonzalez argues that the 

court, sua sponte, should have granted a severance once Mordago's 

defense became clear. 

 Because Gonzalez did not object to Mordago's defense or 

to the failure to sever, we review the district court's action 

for plain error. In reviewing for plain error, we are guided by 

the Supreme Court's recent decision in United States v. Olano, 

113 S. Ct. 1770, 1776 (1993) which noted that: 

 There must be an "error" that is "plain" and 

that "affect[s] substantial rights." 

Moreover, Rule 52(b) leaves the decision to 

correct the forfeited error within the sound 

discretion of the Court of Appeals, and the 

court should not exercise that discretion 

unless the error "'seriously affect[s] the 

fairness, integrity, or public reputation of 

judicial proceedings.'" 

(citations omitted). 

 In order for Gonzalez to demonstrate that the district 

court committed plain error, the defendant must first establish 

that he was entitled to a trial separate from Mordago. If 

Gonzalez fails to establish that he was entitled to a separate 

trial, then our analysis must stop, for the district court would 

(..continued) 

York based conspirators would "spillover" and unduly prejudice 

Gonzalez as it related to Count One of the indictment. The 

defendant's motion, never amended to include any potential 

prejudice from being joined with Mordago, was denied on August 

26, 1992. 
not have committed any error at all. Before turning to the 

specific circumstances which form the basis of Gonzalez's claim, 

we must examine the substantive aspects of a failure to sever. 

 In Zafiro v. United States, 113 S. Ct. 933, 936 (1993), 

the Supreme Court considered whether Federal Rule of Criminal 

Procedure 14 "requires severance as a matter of law when codefendants present 'mutually antagonistic defenses.'" 113 S. Ct. 

at 936.17 After expressing the federal system's strong 

preference for joint trials, the Court held that severance was 

not automatically required in such cases. The Court stated: 

 Mutually antagonistic defenses are not 

prejudicial per se. Moreover, Rule 14 does 

not require severance even if prejudice is 

shown; rather, it leaves the tailoring of the 

relief to be granted, if any, to the district 

court's sound discretion. . . . We believe 

that, when defendants properly have been 

joined under Rule 8(b),18 a district court 

 

17. Fed. R. Crim. Pro. 14 provides in part: 

 If it appears that a defendant or the 

government is prejudiced by a joinder of 

offenses or of defendants in an indictment or 

information or by such joinder for trial 

together, the court may order an election or 

separate trials of counts, grant a severance 

of defendants or provide whatever other 

relief justice requires. 

18. Fed. R. Crim. Pro. 8(b) provides: 
should grant a severance under Rule 14 only 

if there is a serious risk that a joint trial 

would compromise a specific trial right of 

one of the defendants, or prevent the jury 

from making a reliable judgment about guilt 

or innocence. 

Id. at 938 (citations omitted). 

 While the Court did not delineate all the circumstances 

in which a defendant could be prejudiced, it did note the types 

of situations in which prejudice might develop. 

 Such a risk might occur when evidence that 

the jury should not consider against a 

defendant and that would not be admissible if 

the defendant were tried alone is admitted 

against a codefendant. For example, evidence 

of a codefendant's wrongdoing in some 

circumstances erroneously could lead a jury 

to conclude that a defendant was guilty. 

When many defendants are tried together in a 

complex case and they have markedly different 

degrees of culpability, the risk of prejudice 

is heightened. See Kotteakos v. United 

States, 328 U.S. 750, 774-775, 66 S. Ct. 

1239, 1252-1253, 90 L.Ed. 1557 (1946). 

Evidence that is probative of a defendant's 

guilt but technically admissible only against 

a codefendant also might present a risk of 

prejudice. See Bruton v. United States, 391 

U.S. 123, 88 S. Ct. 1620, 20 L.Ed.2d 476 

(1968). 

Id. 

(..continued) 

 Two or more defendants may be charged in the 

same indictment or information if they are 

alleged to have participated in the same act 

or transaction or in the same series of acts 

or transactions constituting an offense or 

offenses. Such defendants may be charged in 

one or more counts together or separately and 

all of the defendants need not be charged in 

each count. 
 While Gonzalez's pretrial motion was based on a 

Kotteakos claim, he does not appeal the denial of that motion. 

Rather, he now asserts a Bruton related violation. His claim of 

prejudice is based on the proposition that Mordago's government 

informant defense resulted in the admission of certain evidence, 

allegedly incriminating to Gonzalez, without providing Gonzalez 

an opportunity to cross-examine Mordago. 

 Gonzalez points to several portions of Mordago's 

defense which, he alleges, specifically prejudiced his right to a 

fair trial. To review these, we will start with Mordago's 

release from prison on October 3, 1991. Mordago talked with law 

enforcement officials three times between the time of his release 

and his arrest on the current charges on November 8, 1991. 

During each conversation, Mordago was advised by the government 

that he was not to engage in any illegal activity until he was 

authorized to do so by his parole officer or another law 

enforcement official. Despite these warning, Mordago quickly 

became involved in drug activity. 

 In his discussions with law enforcement officials on 

October 10, November 5, and November 7, Mordago provided 

information concerning Paz and other drug traffickers. These 

discussions were recorded in FBI 302 reports, which were provided 

to Mordago's counsel prior to trial. The use of these reports by 

Mordago's counsel serves as the basis for Gonzalez's contentions. 

Gonzalez claims that these reports bolstered Mordago's authorized 
informant defense while implicating Gonzalez in the conspiracy, 

thereby violating his right to a fair trial. However, our review 

of the record indicates that Gonzalez's claim lacks merit. 

 First, Gonzalez directs our attention to Mordago's 

counsel's cross-examination of Paz. There, counsel attempted to 

elicit from Paz whether Mordago ever informed Paz that Mordago 

had told government agents of Gonzalez's activity.19 The 

government immediately objected, asserting that defense counsel 

was attempting to establish through his questions the fact that 

Mordago actually provided the information to the government which 

was the basis of counsel's questions. The court sustained the 

government's objection and reminded the jury that "the questions 

of lawyers do not themselves constitute evidence . . . . You 

should not assume anything from those questions because they are 

not embraced in a probative answer as to the occurrence of the 

 

19. Cross-examination of Paz by Mordago's counsel: 

 Q: And [Mordago] also did not tell you that 

he had provided information before the time 

of his arrest on a person by the name of 

Santiago Gonzalez, correct? 

 A: No, he didn't tell me nothing. 

 Q: He also didn't tell you slightly before or 

after the time of your arrest, that he 

provided information on drug dealing that 

referred to Miami? 

 Government: Judge, I'll object to this line 

of questioning. 

TT at 45 (Sept. 11, 1992; Afternoon Session). 
events assumed therein." TT at 48 (Sept. 11, 1992; Afternoon 

Session). Given the court's immediate curative instruction, we 

find no prejudice to Gonzalez from this attempted crossexamination. 

 Gonzalez next asserts that the government bolstered 

Mordago's authorized informant defense to the detriment of 

Gonzalez's own defense when it offered the testimony of FBI agent 

Judith Tyler, who had talked with Mordago on October 10, 1991. 

Agent Tyler testified that Mordago told her that Paz was selling 

between twenty-eight and thirty kilograms of cocaine a week from 

a supplier in Miami. Gonzalez asserts that since the government, 

through Paz's testimony, established Gonzalez as Paz's Miami 

connection, the jury would have presumed that Mordago was 

referring to Gonzalez when he told agent Tyler that Paz had a 

Miami supplier. But agent Tyler did not testify that Mordago 

informed the government that Gonzalez was Paz's Miami connection. 

Moreover, there was other testimony concerning a Florida 

supplier, i.e., Oscar Fuentes. At best, the jury could only 

infer a connection. We do not find any undue prejudice to 

Gonzalez resulting from this testimony.20

 Gonzalez next claims that he was prejudiced by 

statements that Mordago made to FBI agents, which statements were 

 

20. Gonzalez offers the same exact argument as it relates to the 

testimony of AUSA Barbara Cohan concerning the October 10, 1991, 

conversation with Mordago. For the reasons stated in the main 

text, we do not find any undue prejudice to Gonzalez resulting 

from this testimony. 
testified to by the agents, despite the fact that Gonzalez did 

not have the opportunity to cross-examine Mordago. Yet, the 

premise for Gonzalez's purported right to cross-examine is based 

on the assertion that Mordago inculpated Gonzalez when talking to 

law enforcement officials. A review of the evidence suggests 

otherwise. 

 Agent Tyler testified that Mordago told her that one of 

Paz's associates, Theodore Santiago (a/k/a "Poppo"), was selling 

between 100 and 150 kilograms of cocaine a week.21 Agent Tyler 

mentioned this aspect of her conversation with Mordago several 

times during her testimony. Each time, she stated that Mordago's 

reference was to Theodore Santiago.22 

 

21. Theodore Santiago was one of the twelve individuals named in 

the government's indictment, although he was not tried with these 

defendants. 

22. Cross-examination of agent Tyler by Gonzalez-Rivera's 

counsel concerning the agent's meeting with Mordago on November 

5, 1991: 

 Q: Did [Mordago] not tell you that Mr. Paz 

had an associate living in Philadelphia? 

 A: Yes, he did. 

 Q: That individual was known as Santiago, right? 

 A: Yes. 

 Q: Also known as Poppo; right? 

 A: Yes. 

 Q: Did you know who Poppo was? 

 A: No. 
 The government also presented the testimony of FBI 

agent Francis Thiel, who was with agent Tyler when she met with 

Mordago on November 5, 1991. Agent Thiel's testimony confirmed 

that Mordago's references to Santiago during this conversation 

were to Theodore Santiago, not Santiago Gonzalez.23 

(..continued) 

 Q: Do you know who Theodore Santiago is? 

 A: No. 

 Q: [Mordago] told you, did he not, that Poppo 

moved between 100 and 150 kilograms of 

cocaine a week, right? 

 A: Yes. 

TT at 24-25 (Sept. 15, 1992; Morning Session). 

 After this cross-examination, Agent Tyler was crossexamined by Mordago's counsel with regard to the November 5, 1991 

meeting: 

 Q: Do you recall Mr. Mordago saying there is 

a Colombian called Tosti T-O-S-T-I who lives 

on White Plains Road, the Bronx, New York, 

associated with the Cali Cartel? 

 A: Yes. 

 Q: Did he also mention an associate of Mr. 

Paz named Santiago also known as Poppo? 

 A: Yes, he did. 

 Q: Did he state that Poppo moves between one 

hundred to 150 kilos of cocaine per week? 

 A: Yes, he did. 

Id. at 47. 

23. Direct examination of Agent Thiel by the government 

concerning Thiel's meeting with Mordago on November 5, 1991: 
(..continued) 

 Q: Now what other information did Joaquin 

Mordago provide on that date, November 5th, 

1991? 

 A: He mentioned that there was another 

associate of Mr. Paz by the name of Mr. 

Poppo, who was a drug dealer in Philadelphia. 

TT at 70 (Sept. 15, 1992; Morning Session). 

 Cross-examination of agent Thiel by Gonzalez-Rivera's 

counsel concerning the agent's meeting with Mordago on November 

5, 1991: 

 Q: [Mordago] also identified an individual 

named Santiago or Poppo who could obtain 

between 100 and 150 kilos of cocaine per 

week, correct? 

 A: That is correct. 

 Q: I heard you testify on direct examination 

you were part of this case, right? 

 A: Yes. 

 Q: You were monitoring the tapes, right? 

 A: Yes. 

 Q: Do you know an individual named Theodore 

Santiago? 

 A: Yes, sir. 

 Q: He is indicted in this case, right? 

 A: Yes. 

 Q: He has a nickname of Poppo, correct? 

 A: That is correct. 

Id. at 79-80. 
 Notwithstanding the specificity of agents Tyler's and 

Thiel's testimony, Gonzalez asserts that the jury was left with 

the impression that Mordago provided the government with 

information on him, rather than on Theodore Santiago. In support 

of this argument, Gonzalez asserts that a telephone number which 

Mordago associated with "Poppo" and provided to agents Tyler and 

Thiel was Gonzalez's girlfriend's telephone number.24 In 

essence, Gonzalez is asserting that any reference in the agents' 

testimony to Theodore Santiago was in reality a reference to 

Santiago Gonzalez. 

 Gonzalez argues that the agents' testimony concerning 

Theodore Santiago, much of it solicited during cross-examination 

in support of Mordago's authorized informant defense, violated 

Gonzalez's right to a fair trial. Gonzalez asserts that not only 

was he unable to cross-examine Mordago as to these statements, 

but Mordago's defense was antagonistic to Gonzalez's defense, to 

the point of being irreconcilable and mutually exclusive. In his 

brief, Gonzalez asserts: "At the close of all the evidence, the 

jury faced a clear choice of either totally discrediting 

Mordago's claim that he had made pretrial incriminating 

statements against [Santiago Gonzalez], or rejecting out-of-hand 

 

24. Both Tyler and Thiel testified that Mordago had given them a 

telephone number for Theodore Santiago. During his defense, 

Gonzalez presented Maria Soto, who testified that Gonzalez lived 

with her in Philadelphia. Soto testified that the telephone 

number, previously identified as Theodore Santiago's, was her 

number. 
[Santiago Gonzalez's] defense that he was completely innocent of 

any involvement in Paz's drug dealing." 

 Gonzalez goes on to assert that this prejudice was 

compounded by Mordago's closing argument, in which Mordago's 

counsel, as part of his client's authorized informant defense, 

pinpointed Gonzalez as one of the traffickers that Mordago 

revealed to the government. Gonzalez's counsel did not object to 

this summation. Rather, he now asserts that counsel's 

"communication to the jury of Mordago's incriminating statements 

against [Gonzalez] was the same as the admission of a codefendant's confession implicating another defendant in a joint 

trial when the codefendant does not take the stand." 

 As an initial matter, Bruton v. United States, 391 U.S. 

123 (1968) does not apply when an attorney for a co-defendant 

implicates the defendant during closing argument. Sandini, 888 

F.2d at 311. "We have . . . never held that Bruton applies when 

the attorney for a codefendant implicates a defendant during a 

closing argument and we perceive of no reason to do so because 

the arguments of counsel are simply not evidence. Bruton is 

directed toward preserving a defendant's right to crossexamination, and thus has nothing to do with arguments of counsel 

based on their interpretation of the evidence." Id. at 310-11. 

 Gonzalez attempts to distinguish Sandini based on the 

proposition that there was evidence to support counsel's 

assertions that Mordago had identified Gonzalez as Paz's Miami 
drug supplier. In essence, Gonzalez is asserting that the 

underlying evidence violated Bruton. Thus, we examine the use of 

the FBI 302 reports to see if a Bruton violation occurred. 

 We reject Gonzalez's argument on two grounds. First, 

the FBI 302 reports were never published to the jury.25 Second, 

Gonzalez reads too much into the testimony of agents Tyler and 

Thiel. As previously discussed, both agents specifically 

testified that Mordago provided information on Theodore Santiago 

(a/k/a "Poppo"), not Gonzalez. If the agents' testimony of what 

Mordago told them expressly inculpated Gonzalez, clearly there 

would be a Bruton problem and a stronger case for severance. 

However, the evidence highlighted by Gonzalez provides little 

support for reversing his conviction. 

 In addition, we do not believe that Gonzalez was 

entitled to a mistrial and severance based on our reading of 

Zafiro. Zafiro confirms that defendants have a heavy burden in 

gaining severance. We find that Gonzalez has failed to meet this 

burden and that the defendant was not entitled to a severance. 

 Moreover, in regard to the government informant 

defense, Mordago's defense was not mutually exclusive of 

Gonzalez's defense that he was not aware of Paz's drug dealing 

 

25. In fact, the district court was particularly careful in 

preventing a Bruton problem. After summation, Mordago's counsel 

sought to have the FBI 302 reports published to the jury. The 

court denied the motion, citing the potential prejudice to 

Gonzalez. Thus, not only did the district court not commit plain 

error as its relates to Gonzalez's right to a fair trial, it 

sought to avoid any undue prejudice to the defendant. 
activities. Gonzalez testified that he was not involved in Paz's 

drug trafficking and that he did not know, when he met with agent 

Tapia, why MRK owed Paz $97,500. The jury could have believed 

that Mordago was a government informant as his testimony related 

to Theodore Santiago and other traffickers, while also finding 

that Gonzalez was not involved in any drug activity. Thus, it 

would have been possible to acquit both Mordago and Gonzalez. 

Based on our review of the evidence at trial, we do not believe 

the defendants presented mutually exclusive defenses. 

 Moreover, the government presented a substantial amount 

of evidence in support of Gonzalez's role in trafficking cocaine. 

Gonzalez's conviction on Count Fourteen for distribution of a 

controlled substance was based on the September 13, 1991, sale of 

one kilogram of cocaine for $21,000 to agent Gonzalez, working 

undercover at MRK. This transaction was captured on videotape 

and the tape was admitted into evidence. Gonzalez's conviction 

on Count Sixteen for distribution of a controlled substance was 

based on the October 11, 1993, sale of five kilograms of cocaine 

to agent Gonzalez. Paz and agent Gonzalez agreed that agent 

Gonzalez would pay $19,500 per kilogram, for a total sale of 

$97,500. Our review of the evidence indicates that the 

government demonstrated Santiago Gonzalez's active involvement in 

this cocaine transaction. 

 In sum, we find that the district court did not commit 

error in deciding not to sever Gonzalez's trial from Mordago's. 
We further find that there was substantial evidence, exclusive of 

the October tapes to support Gonzalez's conviction. We will, 

therefore, uphold Gonzalez's convictions on Counts One, Fourteen, 

and Sixteen. 

 iii. Fine and Restitution

 In addition to his term of imprisonment and supervised 

release, the district court imposed a $5,000 fine on Gonzalez and 

ordered him to pay $21,000 in restitution. Gonzalez appeals both 

the fine and restitution, asserting that the district court erred 

in failing to make express findings as to his ability to pay. 

See United States v. Demes, 941 F.2d 220, 223 (3d Cir.), cert. 

denied, 112 S. Ct. 399 (1991). The government concedes that no 

such express findings were made. We will therefore remand the 

issue of the fine to the district court for it to make express 

findings regarding Gonzalez's ability to pay a fine. 

 With regard to the restitution ordered by the district 

court, the government contends that calling this sanction 

"restitution" was simply a clerical error which can be corrected 

without remand. The jury returned a special verdict that 

Gonzalez should forfeit $20,000 based on Count Twenty-Five. The 

government claims that the district court mistakenly ordered 

Gonzalez to pay $21,000 as restitution instead of directing the 

defendant to comply with the jury's special verdict on 

forfeiture. The government further asserts that under Fed. R. 

Crim. Pro. 36, a clerical error in a judgment may be corrected by 
the district court at any time. We conclude, however, that the 

scope of the error is not that clear. We will, therefore, remand 

this issue to the district court to clarify whether or not it 

erred in denominating forfeiture as restitution and whether it 

misstated the amount of forfeiture if that is what was intended. 

If the district court intended to impose payment of restitution, 

it should also on remand make express findings as to such 

restitution. 

 D. Melba Quintero

 Melba Quintero was convicted of three telephone counts 

which the government concedes must be reversed (Counts Seventeen, 

Nineteen, and Twenty). We will do so. Quintero's remaining 

convictions are for conspiracy to distribute in excess of five 

kilograms of cocaine (Count One), distribution of cocaine (Count 

Twenty-Two), and possession with intent to distribute cocaine 

(Count Twenty-Three). Quintero asserts that the admission of the 

October tapes was prejudicial error as to these three 

convictions. The government maintains that the admission of the 

October tapes was harmless error based on the substantial 

evidence, excluding the October calls, against Quintero. This 

evidence includes testimony by Paz and FBI agent Joaquin Garcia 

("Garcia"), a videotaped meeting and two telephone calls between 

Quintero and Garcia, and items seized from Quintero at the time 

of her arrest.26 

 

26. These items included the address of Cruz, and the home, work 

and beeper numbers for Gonzalez-Rivera. 
 Paz testified that he received two and one-half 

kilograms of cocaine on consignment from Quintero and codefendant 

Elsa Cruz during a trip to New York shortly before his arrest. 

On October 31, 1991, Paz sold two of these kilograms to agent 

Gonzalez at MRK. This was the basis for Quintero's conviction on 

Count Twenty-Two for aiding and abetting the distribution of 

cocaine. Under the plan developed by the FBI for Paz's arrest, 

agent Gonzalez agreed to accept two of the kilograms of cocaine 

that Paz brought that day but to refuse the remainder. On 

leaving MRK, Paz was arrested with the remaining cocaine in his 

possession. This was the basis for Quintero's conviction on 

Count Twenty-Three for aiding and abetting Paz in the possession 

with intent to distribute cocaine. We find that there was 

adequate evidence, without the tapes, to support these 

convictions. 

 Turning to the conspiracy conviction, soon after Paz's 

arrest, the FBI undertook a further investigation of Quintero. 

An undercover operation was initiated in which Quintero was 

provided with agent Garcia's beeper number and told that a debt 

Garcia owed Paz would be paid to her instead. Approximately four 

weeks after Paz's arrest, Quintero contacted Garcia. Garcia 

testified that during their initial conversation he advised 

Quintero that he had some money that he owed Paz that he would 

give to her instead. After several more telephone conversations, 

Garcia and Quintero agreed to meet at a hotel in Queens, New 
York, on December 10, 1991. Garcia brought with him another 

undercover agent. Quintero was accompanied by Elsa Cruz. 

 A videotape of the December 10 meeting was introduced 

into evidence. At the start of the meeting Quintero introduced 

Cruz as "her partner." Garcia asked Quintero and Cruz how much 

money Paz owed them. They responded that they had provided Paz 

with more than two kilograms of cocaine.27 Garcia testified that 

 

27. The following conversation was recorded on December 10, 

1991. 

 Agent Garcia ("AG"): And how much money does 

Cristobal owe you two? 

 Elsa Cruz ("EC"): Two kilos and two thousand 

twenty-seven. 

 AG: Two kilos and two thousand twenty-seven? 

 Melba Quintero ("MQ"): No. . . . Two hundred 

twenty-seven. 

 AG: How is that? 

 EC: Yes. It's two hundred. Two hundred. . . 

It was two kilos and two hundred and twentyseven. 

 AG: Two hundred twenty-seven thousand dollars? 

 EC: Nooo! 

 MQ: No. . . Two kilos. 

 EC: It was two kilos and two hundred and 

twenty-seven grams. 

 AG: Ah . . . grams. 

TT at 59-60 (Sept. 14, 1992; Morning Session). 
he understood from this conversation that Paz owed them money for 

this amount of cocaine.28 

 In her defense, Quintero admitted that this 

conversation was about cocaine. She asserted, however, that this 

was a ploy that she and Elsa Cruz created in order to get back 

money which Quintero had given Paz for the purchase of a car. 

Quintero testified that any reference to cocaine during this 

meeting was an act in an effort to get Garcia to give them the 

money that he purportedly owed Paz. During this meeting, Garcia 

gave Quintero and Cruz $2,000 as a partial payment.29 

 Quintero seeks to discount the value of the 

videotape, asserting that it "cannot stand on [its] own once Paz' 

testimony is discounted." Our review of the transcript, however, 

convinces us that it can stand very well on its own without 

support from the October tapes. It was up to the jury to judge 

Quintero's credibility. We do not find it likely, in view of the 

other substantial evidence, that the jury's assessment of 

credibility was altered by the improper admission of the October 

tapes. Not only did Paz testify to receiving two and one-half 

 

28. There were references throughout the forty minute meeting to 

cocaine and drug transactions. At one point, Quintero and Cruz 

asked Garcia if he could get a copy of the police report of Paz's 

arrest from Paz's girlfriend. Garcia testified that it is common 

for drug traffickers to show such records to their suppliers in 

an effort to be released from any debt owed on the cocaine 

seized. 

29. This $2,000 was the basis for Quintero's conviction in Count 

Twenty-Eight for criminal forfeiture. 
kilograms of cocaine from Quintero, the jury was presented with a 

videotaped conversation in which Quintero specifies to agent 

Garcia the amount of cocaine that she delivered to Paz. The jury 

had the opportunity to hear and evaluate Quintero's explanation 

for her statements on the videotape. They choose not to believe 

her. 

 We find that the admission of the October tapes 

constituted harmless error and that there is sufficient evidence 

to affirm Quintero's convictions on Counts One, Twenty-Two, and 

Twenty-Three. 

 E. Joaquin Mordago

 Joaquin Mordago was convicted of one telephone count 

which the government concedes must be reversed (Count Eighteen). 

Again, we will do so. Mordago's remaining conviction is for 

conspiracy to distribute in excess of five kilograms of cocaine 

(Count One). Mordago asserts a number of specific reasons why 

the admission of the October tapes constituted prejudicial error 

as to Count One. The government contends, on the other hand, 

that the admission of the October tapes was harmless error based 

on the other evidence against Mordago. This evidence included 

testimony by Paz, a videotape in which Paz was recorded talking 

with someone, purported to be Mordago, about the quality of 

certain cocaine, and items seized from Mordago at the time of his 

arrest.30

 

30. These items included the beeper numbers for Paz and 

Gonzalez-Rivera, and the telephone number of Gonzalez. 
 Mordago's role in the conspiracy involved his drying 

two and one half kilograms of "wet" cocaine which Paz received 

from Quintero and Cruz. Paz testified that Mordago helped him 

dry the cocaine by mixing it with acetone. According to Paz, 

Mordago had attempted to sell the three kilograms of cocaine but 

returned them to Paz when Paz believed that he had a willing 

buyer in agent Gonzalez at MRK. Paz stated that during the 

October 31 transaction at MRK, he called Mordago to complain 

about the quality of the cocaine. Paz's part of this 

conversation was recorded on the videotape, which was played for 

the jury.31 There is no evidence, independent of Paz's 

 

31. The following is testimony by Paz on direct examination by 

the government. 

 Q: Now, during this part of the videotape, 

where are you seated? 

 A: Behind a desk. 

 Q: What were you doing? 

 A: I was making a telephone call. 

 Q: Who were you calling? 

 A: Joaquin Mordago. 

 Q: What were you saying to Joaquin Mordago? 

 A: That I was having problems with that kilo, 

that what he had done was some shit. 

 Q: Now looking at the top of page six of the 

transcript book, you stated towards the top 

of that page the following: There is one 

that you made for me there, that doesn't even 

have a shape. It doesn't even have shape. 
testimony, of the identity of the person to whom he was talking 

during this conversation. 

 In addition to Counts One and Eighteen, Mordago was 

indicted on Count Sixteen for distribution of cocaine. The jury 

acquitted him on this count. Count Sixteen was based on the 

October 11, 1993, sale of five kilograms of cocaine to agent 

Gonzalez by Paz and Santiago Gonzalez. The government's evidence 

tying Mordago to the distribution of this cocaine was testimony 

by an FBI agent who on November 8, 1991, arrested Mordago in the 

Comfort Inn hotel room registered to Gonzalez, twenty minutes 

after Gonzalez was arrested in the parking lot. 

(..continued) 

No, but we have to do that again. Now, what 

were you referring to in that part of the 

conversation that it didn't have shape? 

 A: The kilo that [agent Gonzalez] did not 

want. 

 Q: When you stated "but we have to do that 

again man," what had to be done again? 

 A: That kilo that didn't have shape. 

 Q: What was going to be done to give that kilo shape? 

 A: Again, to take it, melt it, put it in a 

vase, I don't know what the man was going to 

do. 

 Q: That man was going to do, who were you 

referring to? 

 A: Joaquin Mordago. 

TT at 42-43 (Sept. 3, 1992; Morning Session). 
 The defense asserted that Mordago was present in 

Gonzalez's hotel room as part of his efforts to provide 

information to the government. The government presented several 

law enforcement officials who testified that Mordago had not been 

authorized to act in such a manner. We can only hypothesize why 

the jury acquitted Mordago on Count Sixteen. Mordago asserts 

that the jury "apparently accepted" his authorized informant 

defense as it related to Count Sixteen. Equally plausible, 

however, is that the jury believed that the evidence against 

Mordago, arrested while waiting in Gonzalez's hotel room, was 

insufficient to find that he participated in the distribution of 

the five kilograms of cocaine to MRK. Given the fact the 

government presented no evidence that Mordago supplied, 

delivered, or sought direct payment for the five kilograms which 

were given to agent Gonzalez on consignment, it is quite possible 

that the jury did not believe the government had proved beyond a 

reasonable doubt Mordago's participation in the distribution. 

 The jury was presented with evidence of four taped 

phone conversations between Paz and Mordago during the month of 

October, one on October 12, two on October 17, and one on October 

23. Agent Clouse testified that during the October 12 telephone 

conversation, Mordago offered to supply Paz with a device that 

Paz could use to detect wire taps and scramble telephone 

conversations to avoid being intercepted. 
 Paz testified about the contents of all four October 

telephone conversations. In each instance, the conversation was 

played for the jury, followed by Paz's testimony. During the 

October 12 telephone conversation, Mordago told Paz that "I'm in 

a pretty bad situation and I want to start doing something, do 

you understand it?" Paz testified that he interpreted this to 

mean that Mordago wanted to become involved in cocaine 

trafficking. Paz also testified, based on this conversation, 

that Mordago had an interest in meeting with Gonzalez-Rivera. 

During the October 23 telephone conversation, Mordago asked Paz 

"why don't you talk to Papo so that he get me" and later told Paz 

that "I want to start working brother." Paz testified that he 

understood Mordago to mean that he wanted Paz to find him some 

cocaine so that he could start selling it.32

 Without these taped recordings, the only evidence 

presented by the government of Mordago's role in the conspiracy 

was Paz's testimony and the facts surrounding Mordago's arrest. 

 

32. This conversation also contained a statement by Mordago that 

"Alfredo is going to bring to me . . . to fix the blender . . . 

you brought me yesterday." Paz testified this was a reference to 

the drying and mixing of the two and one-half kilograms of 

cocaine received from Quintero and Elsa Cruz. On crossexamination, however, Paz testified that the reference may have 

been to bullets for a gun that he claimed to have given Mordago. 

Paz's testimony on this aspect of the recorded conversation is 

ambiguous. Nevertheless, the government sought to prove that 

Mordago assisted Paz by drying the cocaine received from Quintero 

and Elsa Cruz. The government introduced into evidence a 

telephone conversation between Paz and Gonzalez recorded on 

October 28 in which Paz told Gonzalez that "Joaquin" had dried 

some cocaine for him. This conversation was also inadmissible. 
Mordago asserts that Paz "had an overwhelming motive and bias 

against Mordago" based on the fact that Mordago had supplied 

information to the government on Paz's drug trafficking activity 

three weeks prior to Paz's arrest. On October 10, 1991, Mordago 

informed AUSA Cohan and agent Tyler during a telephone 

conversation that Paz was distributing between twenty-eight and 

thirty kilograms of cocaine per week. 

 AUSA Cohan and agent Tyler talked with Mordago by 

telephone on October 10, 1991, one week after his release from 

prison. AUSA Cohan testified that she recalled that Mordago told 

them that he had met Paz at a restaurant called El Kibuk and 

learned that Paz was distributing between twenty-eight and thirty 

kilograms of cocaine per week. Agent Tyler testified that during 

this October 10 telephone conversation, Mordago "advised me that 

he had met, had been to El Kibuk, and had learned that a guy 

named Cristobal Paz was selling 28 to 30 kilos of cocaine from a 

supplier in Miami." TT at 15 (Sept. 15, 1992; Morning Session). 

 Mordago's theory, if credible, gives Paz a motive to 

implicate Mordago in the conspiracy in retaliation for Mordago's 

role in providing the government with information concerning 

Paz's drug related activity. Moreover, the only substantive 

evidence establishing Mordago's role in the conspiracy outside of 

the October tapes is Paz's testimony. Unlike the other 

defendants recorded on the October tapes, for whom there was 

independent evidence beyond Paz's testimony to prove their active 
role in the conspiracy, no such independent admissible evidence 

was introduced by the government with regard to Mordago. 

 The government responds that Mordago's arrest on 

November 8 in Gonzalez's Comfort Inn hotel room was evidence of 

his role in the conspiracy. However, Mordago's presence in the 

hotel room did not seem that culpable to the jury. They 

acquitted Mordago on Count Sixteen. The only other evidence 

brought to our attention of Mordago's involvement in the 

conspiracy was his possession of Gonzalez-Rivera's beeper number 

at the time of his arrest. 

 In a trial without the October tapes, Paz's testimony, 

with appropriate cross-examination, might be enough to support a 

finding that Mordago participated in the conspiracy. Here, 

however, the admission of the October tapes clearly disadvantaged 

Mordago to a greater degree that it did his co-defendants. Based 

on this analysis, we do not have a sure conviction that the 

admission of the October tapes did not prejudice him. 

 We do not reach this conclusion on the basis that 

Mordago should have been acquitted based on his authorized 

informant defense.33 Rather, we only find that the admission of 

 

33. In crediting the information Mordago supplied to the 

government on October 10, we in no way comment on the sufficiency 

of Mordago's authorized informant defense. That will be for a 

new jury to decide if the government seeks to retry the 

defendant. It is entirely possible that the jury believed, as 

the government argued, that Mordago was not authorized to engage 

in the illegal activity that the government sought to prove he 

engaged in. We only note the information that Mordago provided 

to the government on October 10 as it impacts on the credibility 

of Paz's testimony. 
the October tapes constituted prejudicial error to defendant 

Mordago. We will therefore reverse Mordago's conviction on Count 

One. 

 V. Jose Cruz

 Cruz is not recorded on any telephone call offered into 

evidence by the government. Rather, he challenges the district 

court's refusal to suppress evidence of fifteen kilograms of 

cocaine found in his car during a search by the New Jersey State 

police. Cruz asserts that the search of a suitcase in the trunk 

of the car he was driving constituted an illegal search and 

seizure, which should have resulted in the evidence obtained 

being suppressed. A review of the facts culminating the search 

indicates that no constitutional violation occurred and the 

district court did not err in admitting the evidence obtained. 

We therefore will affirm Cruz's conviction on Counts One and 

Five. 

VI. 

 For the reasons stated above, we will affirm GonzalezRivera's convictions on Counts One, Two, Five, Six, and Eight, 

Rodriguez's convictions on Count One and Thirteen, Gonzalez's 

convictions on Counts One, Fourteen and Sixteen, Quintero's 

convictions on Counts One, Twenty-Two, and Twenty-Three, and 

Cruz's conviction on Counts One and Five. We will reverse 

Gonzalez's convictions on Count Twenty-One, and Quintero's 

convictions on Counts Seventeen, Nineteen, and Twenty. We will 
reverse Mordago's convictions on Counts One and Eighteen and 

remand Count One against Mordago to the district court for a new 

trial. We will reverse and remand for further proceedings the 

fine and restitution imposed on Gonzalez. 

 Defendants Gonzalez and Quintero will have to be 

resentenced because of the reversal of certain of their 

convictions. The government concedes that the suppression of the 

October tapes will also require that defendants Gonzalez-Rivera, 

Rodriguez, and Cruz be resentenced because in calculating their 

original sentences the district judge may have attached 

significance to one or more of the October tapes.34 Therefore, 

we will remand for resentencing defendants Gonzalez, Quintero, 

Gonzalez-Rivera, Rodriguez and Cruz. 

 

34. The government mades this concession in its letter of March 

31, 1994: 

 Re-sentencing for all six defendants would be 

necessary because within a given guideline 

range, the district court has wide 

discretion. Since the judge, in his 

discretion, could have attached considerable 

significance to one or more of the October 

tapes, re-sentencing would be appropriate to 

allow the judge to re-weigh all of the 

various factors which ultimately contribute 

to a particular sentence.