*

Honorable Henry Woods, Senior U.S. District Judge for the

Eastern District of Arkansas, sitting by designation.

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

Nos. 94-4021 & 96-4878 _______________

D. C. Docket No. 92-218-CR-UU-B 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE FERNANDEZ,

Defendant-Appellant.

______________________________

Appeals from the United States District Court

for the Southern District of Florida

______________________________

(March 17, 1998)

Before ANDERSON and BIRCH, Circuit Judges, and WOODS*

, Senior

District Judge.
2

BIRCH, Circuit Judge:

In this consolidated appeal, Jose Fernandez, a former MiamiDade police officer, challenges his conviction for conspiracy to

import and distribute cocaine, 21 U.S.C. §§ 963 and 846, as well as

the district court’s denial of his motion for a new trial. For the

reasons that follow, we vacate the district court’s order denying

Fernandez’ request for a new trial and remand this case for an

evidentiary hearing. In remanding this case, we specifically direct

the district court to explore the merits of Fernandez’ claims that the

government withheld material, exculpatory evidence in violation of

the principles enunciated in Brady v. Maryland, 373 U.S. 83, 83 S.

Ct. 1194, 10 L. Ed. 2d 215 (1963), and that newly-discovered

evidence requires that he receive a new trial. We deem all

remaining contentions raised in these appeals to be without merit.

 

I. BACKGROUND
3

Viewing the facts in the light most favorable to the government,

United States v. Keller, 916 F.2d 628, 632 (11th Cir. 1990), we find

the following circumstances underlying Fernandez’ case to be

undisputed: Enrique Zamorano became involved in the drug trade

in 1984 while working as a baggage handler at Miami International

Airport. Initially, Zamorano unloaded small quantities of cocaine

from airplanes originating in Colombia. In 1987, Zamorano and his

Colombian associates sought to expand their business by bringing

larger quantities of cocaine into the cargo facilities in Miami. At first,

Zamorano transported cocaine on cargo flights from both Haiti and

Venezuela into Miami. The cocaine was supplied by a Colombian

distributor, Florentino Fernandez. During these years, Zamorano

also participated in several business enterprises created to launder

the proceeds from cocaine shipments. Zamorano’s United Statesbased operations gradually grew to include, among other individuals,

Orlando Fernandez, Hector Aguilar, and Jean Francois.
4

It is beyond dispute that multiple massive shipments of cocaine

successfully entered the United States through Zamorano’s

organization. The particular shipment at issue in this case, however,

implicates the following events: In 1991, a joint task force comprised

of United States Customs (“Customs”) agents and agents of the

Drug Enforcement Administration (“DEA”) were acting in cooperation

with the Venezuelan National Guard (“VNG”) to effect controlled

deliveries of cocaine from Caracas, Venezuela, into Miami. The

DEA also had an office in Caracas that was actively involved in this

joint effort. The DEA and VNG both used an informant,

denominated “Cristobal” or “Cristo” [hereinafter Cristo], who acted as

a broker between Zamorano and Florentino Fernandez. Cristo was

controlled primarily by General Ramon Guillen Davila (“General

Guillen”) of the VNG; the only contact the DEA was able to have with

Cristo was communicated through General Guillen.

In 1989, Zamorano established an airline, Aerolinas Latinas, to

transport cargo from Venezuela into the United States. Although the
5

airline originally functioned as a legitimate enterprise, Zamorano

decided in 1990 to use the airline to smuggle cocaine into Miami’s

airport. In October 1990, Zamorano had a large crate built in the

United States and flown to Caracas filled with automobile parts.

After the plane’s arrival in Venezuela, however, the VNG destroyed

this crate. Zamorano had a second crate built; in this instance, he

sent specifications for the crate to Cristo, who had the crate

constructed and delivered to the VNG. At the same time, Cristo

conveyed to the VNG approximately 1,200 kilograms of cocaine that

had been shipped to Zamorano – through Cristo – by Florentino

Fernandez. The VNG and DEA agreed to make a controlled delivery

of this cocaine. In early November 1990, however, the VNG

attempted to transport the cocaine on Aerolinas Latinas without the

DEA’s knowledge or participation. The VNG’s attempt was

unsuccessful because the crate did not fit through the plane’s cargo

door.
6

Zamorano next devised another strategy to transport the

cocaine from Venezuela to Miami: he used cargo pallets, normally

not subject to Customs’ inspection, to store the cocaine.

Specifically, Zamorano’s plan involved using stacks of pallets that

had been hollowed out, placing small crates of cocaine into the

hollowed areas, stacking the crates between uncut pallets, and

banding them together. Several of Zamorano’s associates, including

Cristo, helped to orchestrate Zamorano’s plan. On November 8,

1990, the first shipment containing approximately 410 kilograms of

cocaine was successfully shipped into Miami undetected by law

enforcement.

One week later, Zamorano attempted a second shipment by

this method. In this instance, the VNG made the DEA aware of the

intended shipment and the two agencies again planned a controlled

delivery into Miami. The VNG loaded the cocaine into the plane and

indicated on a tally sheet provided to the DEA that it had transported

approximately 602 kilograms of cocaine in this shipment; it is
7

undisputed, however, that U. S. law enforcement personnel seized

only 400 kilograms of cocaine after this shipment arrived in the

United States. 

Orlando Fernandez, Jean Francois, Hector Aguilar, and

Zamorano all testified as part of the government’s case at

Fernandez’ trial. Each co-conspirator’s testimony supported the

government’s allegation that Fernandez had “tipped off” Zamorano

by informing him that the November 16 shipment was under

surveillance. Orlando Fernandez, Fernandez’ cousin, testified that

Fernandez had expressed interest in becoming chief of security at

Zamorano’s airline and had provided Zamorano on many occasions

with information regarding whether drug shipments were “safe” to

retrieve at the airport. Jean Francois, Hector Aguilar, and Zamorano

all testified that, immediately prior to the November 16th shipment’s

arrival in Miami, Fernandez attempted to contact Zamorano to inform

him that the delivery would be under surveillance by law

enforcement. Each of the co-conspirators further testified that
8

Fernandez (1) met with Zamorano on November 17th and pointed

out to him U. S. Customs’ surveillance vehicles at the Miami airport;

(2) met with Zamorano, Orlando Fernandez, and others later that

evening and helped the conspirators to devise a way to “unload” the

cocaine by delivering the shipment to Customs agents; (3) had an

informant associated with Customs in Puerto Rico who regularly

provided him with information regarding planned surveillance of

cargo planes into Miami; and (4) periodically received payments

from Zamorano for his assistance. In addition, the government

presented at trial several taped conversations between Fernandez

and Orlando Fernandez. Although the contents of these

conversations implicated Fernandez with respect to his involvement

in Zamorano’s organization, Fernandez made no conclusive

admission of his own complicity. 

Fernandez’ defense at trial, reduced to its simplest terms, was

that he was “in the wrong place at the wrong time” and that there

were other more likely “tipsters” who may have informed Zamorano
9

that federal law enforcement officers were aware of the November

16th drug shipment. Several DEA agents testified regarding the

machinations of the conspiracy in its entirety; in each case,

Fernandez attempted to elicit testimony from the agents that either

General Guillen, a suspected corrupt official, or Cristo, a known

informant, could have “tipped” the shipment. DEA agents also

testified that, when Fernandez was arrested, he stated that he was

"nowhere near the top" of Zamorano's organization. Fernandez

attempted to show, through cross-examination, that this statement

was intended to be sarcastic. Fernandez also presented to the jury

evidence contained in a DEA report indicating that Orlando

Fernandez had told the DEA that Cristo had been the tipster.

Fernandez testified on his own behalf and admitted that he had met

several of the individuals associated with the conspiracy – including

Zamorano – through his cousin, Orlando Fernandez. Fernandez

conceded that he had tried to contact Zamorano on the evening of

November 16th, but only to relay to Orlando Fernandez that he
10

needed a place to stay that night due to marital difficulties; the same

explanation essentially accounted for his presence at a meeting with

Zamorano and Orlando Fernandez later that evening. Ruben

Gonzalez, the Customs agent alleged by the government to be

Fernandez’ informant, also took the stand and testified that he and

Fernandez, like many state and federal law enforcement officers,

frequently shared information but did not provide “tips” for illicit

purposes. Fernandez was acquitted of the substantive charges of

possession and importation of cocaine, but convicted of conspiracy

to possess with intent to distribute and to import cocaine.

Fernandez was sentenced to 30 years’ imprisonment.

During the course of the trial, several news reports appeared

indicating that General Guillen had been arrested in Venezuela for

his suspected involvement in the drug trade. The reports further

alluded to the relocation of two DEA agents suspected of being

romantically involved with General Guillen and his lieutenants, as

well as a CIA agent, Mark McFarlin. The court held an in camera
11

hearing outside the presence of both the defendant and his attorney

to discuss the possible implications of these reports. The transcript

of that hearing remains sealed from the defendant. As a result of

the hearing, the court ordered the government to produce for the

defendant: (1) any reference in a report that would suggest that

someone other than the defendant was in a position to tip the load

of cocaine; (2) information which describes the nature and scope of

General Guillen’s narcotics trafficking activities; and (3) information

that suggests that a DEA agent associated with this case may have

“crossed the line.” Following a second ex parte hearing, the court

revealed to the defendant, pursuant to Brady, that evidence existed

showing that Zamorano had made several payments to Cristo

following both the November 8 and November 16th shipments. It is

unclear whether any further Brady material was produced. The

thrust of this appeal is whether the government fulfilled its obligation

to convey to the defendant all the material information of which it
12

was aware that would "point the finger" at other potential tipsters

regarding the shipment at issue. 

Subsequent to Fernandez’ trial, more news reports appeared

describing involvement of the DEA, CIA, and VNG in drug shipments

from Caracas to the United States during the relevant time period.

Many of the allegations contained in these reports concerning

corruption, inefficiency, and romantic liaisons between officials in the

DEA and VNG already were known -- or were made known -- to

Fernandez during his trial. The only news reports that bear directly

on this appeal are those that describe the possible participation of

the CIA in the drug trafficking activities at issue. 

Numerous newspaper accounts charged that the CIA had

funded an anti-drug unit that had smuggled substantial quantities of

cocaine into the United States in uncontrolled deliveries approved by

the agency; that General Guillen had worked closely with the CIA

and, in particular, with CIA agent Mark McFarlin, who had possibly

“tipped off” Guillen regarding investigation into a shipment of
13

cocaine; that the DEA had refused to participate in these

uncontrolled deliveries; and that the CIA expressly may have

authorized the November 8th shipment of cocaine that successfully

entered the United States. R1-263, Exh. 3. 

Fernandez now argues that the information contained in these

reports either was known or should have been known to the

government at the time of trial, was not divulged, and was

exculpatory; in the alternative, he suggests that the news reports

present newly discovered evidence that warrants an evidentiary

hearing and a retrial. The government neither confirms nor denies

the accuracy of the reports but avers that, even assuming the

information contained in the newspaper accounts is true, the

outcome of Fernandez’ trial would not have been altered had he

possessed this information.

The district court denied Fernandez’ motion for a new trial or

evidentiary hearing and stated that the substance of the reports was

known to Fernandez at the time of trial; the conclusions drawn by
14

Fernandez from the reports a matter of rank speculation; and the

information contained therein merely cumulative or impeaching.

II. DISCUSSION

 We review the district court’s denial of a motion for a new trial

based on a Brady violation for abuse of discretion. United States v.

Kersey, 130 F.3d 1463, 1465 (11th Cir. 1997). A Brady claim is

available if either exculpatory or impeachment evidence is

suppressed, regardless of the good faith or bad faith of the

prosecution. United States v. Yizar, 956 F.2d 230, 233 (11th Cir.

1992). A defendant who seeks a new trial based on an alleged

Brady violation must show that, had the evidence been revealed to

the defense, there is a reasonable probability that the outcome of

the proceeding would have been different. See United Stated v.

Newton, 44 F.3d 913, 918 (11th Cir. 1995).

Our review of the district court’s denial of a motion for a new

trial based on newly discovered evidence is subject to the abuse of
15

discretion standard. United States v. Obregon, 893 F.2d 1307, 1312

(11th Cir. 1990). Similarly, we review the district court’s denial of an

evidentiary hearing for abuse of discretion. United States v.

Massey, 89 F.3d 1433, 1443 (11th Cir. 1996), cert. denied, ___ U.S.

___, 117 S. Ct. 983, 136 L. Ed. 2d 865 (1997). To obtain a new trial

based on newly discovered evidence, a “movant must demonstrate

that the evidence was discovered after trial, that due diligence was

shown, and that the evidence was neither cumulative nor

impeaching but actually material and likely to produce a new result.”

Branca v. Security Ben. Life Ins. Co., 789 F.2d 1511, 1512 (11th Cir.

1986) (per curiam). 

Fernandez contends that the information concerning the

alleged involvement of the CIA in drug shipments from Caracas into

Miami generally and, more particularly, the shipments described in

this case, coupled with the newly-established link between the CIA

and General Guillen would have afforded him a far stronger defense.

Specifically, he suggests that this information would have allowed
16

him to show that General Guillen and Cristo were not simply “double

dealers” but, rather, were working closely with the CIA and had a

motive to “tip” the shipment. Fernandez further argues that he

cannot ascertain whether this evidence is Brady or newly discovered

evidence because the in camera hearings held during the trial,

during which Brady material was discussed, were held outside the

presence of defense counsel and remain sealed.

The government responds that Fernandez has concocted a

far-fetched, imaginative theory to justify a retrial. It is worth noting,

however, that the government does not deny the essential veracity

of these news reports which are, by themselves, extraordinary and

troubling. Although the government presented a formidable case

against Fernandez at trial, it was based almost exclusively on the

testimony of co-conspirators. While the uncorroborated testimony

of co-conspirators can be sufficient to support a conviction, see

United States v. Broadwell, 870 F.2d 594, 601 (11th Cir. 1989), our

inquiry at this stage is whether evidence of the CIA’s possible link to
17

the very drug shipments at issue in this case either reasonably might

have affected the outcome of the proceeding or, in the alternative,

would likely produce a different result if the case were retried. In our

view, the district court too easily brushed aside the possible impact

that these rather sensational allegations might have had on

Fernandez’ case. Fernandez tried to establish that, due to the

overall corruption in the VNG and possibly the DEA, other possible

“tipsters” existed, but his case was vulnerable -- if not thoroughly

implausible -- without the various bits and pieces of information

needed to create a coherent alternate theory of the case. Much of

the information that Fernandez did obtain during the trial came from

news reports that were never officially corroborated by the

government; conversations regarding the veracity and potential

implications of these news reports, moreover, consistently were held

outside the presence of both the defendant and his attorney. At this

stage, it is impossible to discern whether the addition of evidence of

a possible CIA-link to this case would have completed the puzzle
18

and thereby created for the jury reasonable doubt or whether, as the

district court determined, the evidence was merely cumulative. In

light of the fact that the government’s case against Fernandez was

based almost exclusively on the testimony of co-defendants,

however, and because the allegations potentially implicating the

CIA are responsive directly to the defense that Fernandez attempted

to present, we conclude that these allegations are, at the very least,

significant enough to permit Fernandez to present his case at a

hearing.

We express no opinion as to whether Fernandez ultimately will

succeed in his effort to demonstrate that the evidence contained in

media reports concerning the possible involvement of the CIA in this

case impugned his verdict. Fernandez has proffered, however,

sufficient evidence that these allegations and reports could

materially have affected his trial such that an evidentiary hearing is

appropriate. We further note that a hearing is necessary to parse

out the Brady elements of Fernandez’ claim from the request for a
19

new trial based on newly discovered evidence. Accordingly, we

VACATE the district court’s order denying Fernandez’ motion for a

new trial and REMAND this case for an evidentiary hearing

consistent with this opinion.