Appeals from the United States District Court for the District of Columbia (No. 03cr00554-03).
Before: ROGERS and GRIFFITH, Circuit Judges, and SILBERMAN, Senior Circuit Judge.
Appellants Jose Antonio Celis, Juan Diego Giraldo, and Anayibe Rojas Valderama were convicted by a jury of conspiring to import cocaine and to manufacture and distribute cocaine for import into the United States, in violation of 21 U.S.C. §§ 952, 959, 960, and 963. The events underlying these convictions occurred principally in Colombia, South America. Because appellants' actions were tied to a terrorizing drug trafficking organization in Colombia, the district court issued a protective order to ensure the safety of certain government witnesses. Appellants contend that the protective order and other rulings by the district court require reversal of their convictions.*fn1 Specifically, appellants contend that the protective order allowing government witnesses to testify under pseudonyms violated their confrontation and effective counsel rights under the Sixth Amendment. They further contend that their ability to prepare for cross-examination was impeded by the government's belated production of discovery materials it was obligated to disclose. Additionally appellants contend they were denied a fair trial because the district court rejected their objections to discovery violations by the government, denied requests for a continuance, and failed to require translation of discovery materials from Spanish into English and from English into Spanish. Finally, they contend the district court erred by denying a motion for severance, admitting audio recordings and statements in a video recording, finding no prejudicial variance between the indictment and evidence presented at trial, ruling there was sufficient evidence to support the verdict, and denying a motion for a new trial.
We hold that in issuing and managing the protective order the district court accommodated the government's law enforcement interests in a manner that did not impermissibly intrude upon appellants' Sixth Amendment rights and did not result in prejudice that would require reversal of their convictions. We further hold that appellants' procedural and evidentiary challenges are unpersuasive. Accordingly, we affirm the judgments of conviction.
The Fuerzas Armadas Revolucionaras de Colombia ("FARC") is the most significant drug trafficking organization in Colombia. An area in Colombia known as the Caguan region is a major source of the FARC's cocaine production. The 14th Front, a division of the FARC, controls the region, forcing local peasants to sell their coca crop exclusively to the organization.
At the time of the events in this case, the 14th Front was commanded by Fabian Ramirez. Under orders from Ramirez, Anayibe Rojas Valderama served as the leader and chief financial officer for the 14th Front's drug trafficking operations in the Caguan region. In her position, Valderama was responsible for ensuring that peasants in the Caguan region sold cocaine base only to the FARC. She made frequent trips throughout the region to exchange pesos for cocaine base. After the cocaine base was acquired, Valderama arranged for it to be delivered to different processing facilities where it was converted into cocaine powder. She often traveled to these laboratories to observe operations. Once the cocaine was in powder form, buyers would fly in to small airstrips near the laboratories to take possession of the cocaine with Valderama overseeing the exchange.
In 2001 Jose Antonio Celis, a drug trafficker who had done business with the FARC ten years prior, sought to make contact with the FARC with hopes of another partnership. Celis contacted Rocio Alvarez, an associate of Valderama's who would later become a DEA cooperating informant, and told her that he wished to obtain cocaine from the FARC. Celis informed Alvarez that he still had drug contacts throughout the world. He proposed a scheme in which he would ship FARC cocaine via boat to Panama and then on to the United States in containers. Celis asked Alvarez to deliver his proposal to her FARC contacts.
Alvarez contacted Juan Diego Giraldo, a drug trafficker with ties to Fabian Ramirez, and communicated the Celis proposal to him. Giraldo then arranged a meeting between Alvarez and Fabian Ramirez, at which Alvarez gave Ramirez a letter outlining Celis's plan. Giraldo later contacted Alvarez and asked her to tell Celis that he should travel to San Vicente del Carguan to meet with Ramirez. While the parties did not reach an agreement at this initial meeting, Giraldo arranged a second meeting six or seven months later in which an agreement was reached. Under the agreement, Celis would transport 1,400 kilograms of cocaine to the United States. The cocaine was to come from the Caguan region where Valderama led the FARC's drug operation. Mr. Celis would not purchase the entire load; other investors included Fabian Ramirez and Valderama. The plan proved only partially successful. Celis did receive cocaine from the FARC and sold some of it in Miami, Florida. But a portion of the shipment was lost in Panama where, as Celis later recounted to Alvarez, there were "some problems" and "even deaths." Apparently some of the drugs were seized by law enforcement. When Celis did not promptly repay the FARC investors due to the loss, Valderama complained to Alvarez that if he did not pay his debts, he would be killed. After hearing this news, Alvarez arranged a meeting with Giraldo and Celis. At the meeting Celis gave Giraldo newspaper accounts from Panama showing that drugs had been seized by the law and asked Giraldo to show the articles to Ramirez and Valderama. Celis later told Alvarez that he was trying to pay Ramirez and Valderama back through new shipments of drugs to the United States.
Later in mid-2003, Celis invited Rodrigo Jardinero (a/k/a "Lechuga"), a Colombian drug trafficker with whom Celis had a longstanding business relationship, to a meeting in Panama. Among others, Valderama, Celis, and Giraldo were present at this meeting. Valderama led the discussion and told Celis that "he owed us a lot of money." Though Jardinero was initially reluctant to work with Valderama, he agreed to assist in transporting some cocaine to Charleston, South Carolina and Miami in order to help Celis. Celis eventually sent Jardinero two different loads of cocaine; Jardinero sent 40 kilos on to Charleston, but they were not successfully received by his contacts there. Jardinero did successfully send 41 kilos to Miami.
Valderama also worked with traffickers other than Celis and Giraldo to sell FARC cocaine. A drug trafficker named Gordo Andres brokered a deal with Valderama in which she would provide FARC cocaine to a trafficker known as "El Burro," who would arrange for the cocaine to be sent to a laboratory near Venezuela and then on to the United States. Pursuant to that agreement, Andres and El Burro both made trips to meet Valderama in the Caguan region and purchased a total of 1,600 kilograms worth of cocaine. Valderama counted their money and authorized the release of the cocaine. Later, after El Burro and Andres had a falling out, El Burro turned to Alvarez to broker a deal for him to purchase additional cocaine from the FARC. Alvarez, with the assistance of Giraldo, put El Burro in contact with Valderama. This time El Burro sent a pilot to pick up 420 kilograms of cocaine from Valderama.
In addition to the schemes described above, the appellants in this case formed a number of other plans to traffic cocaine out of the Caguan region that never came to fruition. For example, Valderama and Ramirez hatched a plan in November of 2002 in which they would provide Gordo Andres with cocaine for him to sell to enemies of the FARC, only to later steal it back so that Giraldo could ship it to the United States. Later, in May 2003, Giraldo and Celis asked Andres to invest in a plan to ship cocaine to the United States, but that deal fell through when Andres refused to participate. And while Andres initially agreed to assist Celis in another deal to purchase 3,000 kilograms of 14th Front cocaine to ship to a drug boss in Mexico, that deal also fell through when Andres went missing.
Valderama's role in distributing FARC cocaine ultimately came to an end on February 10, 2004, when Colombian army soldiers raided her farm and captured her. Various items were seized including six kilograms of cocaine, thirteen weapons, money, military uniforms, a satellite telephone, a video camera, and several documents one of which included a phone number and the handwritten name "Flaco," which was Giraldo's alias. Valderama, Ramirez, Celis, and Giraldo were indicted for conspiracy to manufacture and distribute five kilograms or more of cocaine, knowing or intending that it be imported into the United States in violation of 21 U.S.C. §§ 952, 959, 960, and 963. The district court denied Giraldo's pre-trial motions for severance and Valderama, Giraldo, and Celis were tried together.*fn2 At trial, the government introduced testimony from an expert knowledgeable with the operations of the FARC and from a number of witnesses who were associates of the appellants. The government also introduced audio and video recordings capturing each of the appellants discussing drug trafficking.
The jury convicted all three appellants. Valderama and Giraldo were sentenced to 200 months' incarceration; Celis was sentenced to 175 months' incarceration. The appellants have appealed, each presenting grounds for reversal.
Protective Order; Brady. Valderama and Giraldo contend the government's use of pseudonyms for its witnesses and limitations on disclosure of the witnesses' true identities prevented adequate investigation of the witnesses and violated appellants' confrontation rights under the Sixth Amendment.*fn3 Valderama also contends that her right to the effective assistance of counsel under the Sixth Amendment was violated. Further, Valderama challenges the timeliness of the government's disclosures of information and evidence pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972), maintaining that the delayed disclosures impeded counsel's ability to investigate and prejudiced counsel's ability to prepare for cross-examination of protected government witnesses.
Disclosure of government witness lists and of exculpatory or impeachment information and evidence implicates the due process considerations of the Fifth Amendment.*fn4 See United States v. Ruiz, 536 U.S. 622, 631-32 (2002). Determining whether to require such disclosure involves considering "the nature of the private interest at stake . . . the value of the additional safeguard, and . . . the adverse impact of the requirement upon the Government's interests." Id. at 631. Because the timing of such disclosure may affect a defendant's ability to confront witnesses at trial, these disclosure requirements also implicate the confrontation considerations of the Sixth Amendment, as, for example, where the credibility of a key incognito prosecution witness is in issue. See, e.g., Smith v. Illinois, 390 U.S. 129, 131-32 (1968). These considerations can burden both the interests of the government in enforcing the law and the ability of a defendant to prepare a defense.
Valderama's and Giraldo's Sixth Amendment challenge to the use of pseudonyms requires this court to determine whether the district court's restriction on defense access to the true identities of protected witnesses until six days before the witness testified at trial impermissibly impeded appellants' ability to crossexamine the protected witnesses in violation of the Sixth Amendment. We note that in support appellants cited at least one Fifth Amendment due process case that reflects some overlap between the concepts of Fifth Amendment due process and the right of confrontation under the Sixth Amendment. Thus, a related question this court must address is whether the government's manner of disclosure pursuant to Brady and Giglio as to the protected witnesses, by providing redacted materials and information to the defense on the first day of trial and unredacted materials several days before each witness testified, prejudiced appellants' ability to prepare for crossexamination.
The district court issued the protective order under seal on the first day of jury selection, January 8, 2007. Two months earlier the government had filed under seal a motion in limine seeking a protective order barring the release of the true identities of witnesses from Colombia and allowing these witnesses to testify under pseudonyms. The motion set out in vivid detail the reasons underlying the request. The district court granted the motion for a protective order but not exactly as the government had requested. Instead of barring the defense from ever learning the true identifies of the protected witnesses, the district court issued a protective order including provisions under which the defense could obtain the true identities of these witnesses. Referencing concerns about witness safety, the protective order allowed the witnesses from Colombia to testify under pseudonyms but required the government to disclose the witnesses' true identities to defense counsel. The protective order also allowed each defense counsel to share the protected witnesses' true identifies with the represented defendant and one member of the defense team located in the United States. The true identities, however, could not be shared with anyone located in Colombia without the district court's prior permission.
At the motions hearing on January 8, 2007, the district court reviewed the flexibility of the protective order. For instance, Valderama's counsel expressed concern that the protected witnesses' identities could never be released to individuals located in Colombia. The district court responded by emphasizing that the identities could not be released only "without leave of court." The district court explained that defense counsel would not need to "file formal written motions" for permission to disclose protected witness identities in Colombia, but could "come up to the side-bar [in the courtroom] and talk about it, and we'll deal with them one at a time if we need to." Mot. Hr'g Tr. 23, Jan. 8, 2007. The government, in turn, proposed providing to defense counsel the true identity of each protected witness seven days before the witness testified at trial. Although at this hearing Valderama's counsel instead sought the true identities of two witnesses immediately and Giraldo's counsel expressed concern that the trial schedule might not reflect the volume of new information the government had begun providing to the defense, appellants do not suggest that at this hearing they raised other objections to these time constraints.
The government began presenting its case in chief on January 10, 2007, with FARC expert Lieutenant Colonel Camilio Santiago of the Colombian military as its first witness, and the jury heard closing arguments on February 7, 2007. The government's witnesses included a number of Colombian witnesses who testified under pseudonyms.*fn5 One, "Juan Valdez," was scheduled to testify on January 30, 2007. On January 25, the district court granted Valderama's counsel permission to speak with a Colombian official in the United States and by telephone with a prosecutor in Colombia about "Valdez," and told Valderama's counsel "to get back" to the district court "if [defense counsel] needed more." Trial Tr. 1420-21, Jan. 29, 2007. On January 29, the district court granted permission for Valderama's counsel to investigate "Valdez" in the United States and in Colombia using his true identity. "Valdez" began testifying on January 31. On January 29, 2007, the district court also granted Valderama's counsel permission to investigate protected witness "Mauricio Moreno" in Colombia using his true identity; the district court postponed cross-examination of "Moreno" to "give [Valderama's counsel] all the time [she] want[s] to do the investigation." Trial Tr. 1263, Jan. 29, 2007.
Valderama and Giraldo contend that the government's use of pseudonyms for its witnesses prevented proper investigation of the witnesses and thereby violated their confrontation rights under the Sixth Amendment. Valderama also contends her right to the effective assistance of counsel under the Sixth Amendment was violated.
Although the true identities of protected witnesses who testified under pseudonyms eventually were made known to the defense, the protective order's limitation on defense access to and ultimate use of information regarding these witnesses presents concerns similar to those where witnesses are prevented from disclosing information on cross-examination or when confidential informants do not testify in court. The Supreme Court has addressed such disclosure issues on a case-by-case basis. In Alford v. United States, 282 U.S. 687 (1931), and Smith v. Illinois, 390 U.S. 129, the Court held, much as Valderama and Giraldo contend, that the witnesses in those cases should have been required to disclose their addresses, and in Smith to disclose his true name, in order to give the defense "the opportunity to place the witness in his proper setting" and to test the witnesses' credibility at trial. Smith, 390 U.S. at 132 (quoting Alford, 282 U.S. at 692); see also Smith at 133-34 (White, J., concurring). Similarly, in Roviaro v. United States, 353 U.S. 53 (1957), relied on by Valderama, the Supreme Court held as a matter of "the fundamental requirements of fairness" that the prosecution could not refuse to disclose the identity of an undercover informant who was "the sole participant, other than the accused, in the transaction charged," because the informant's identity was "relevant and helpful to the defense of an accused," id. at 60-61, 64. The Court cautioned, however, that "no fixed rule with respect to disclosure is justifiable." Id. at 62. Instead "[t]he problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense," and "[w]hether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors." Id.
The Supreme Court held, in addressing a Brady claim, that "[t]here is no general constitutional right to discovery in a criminal case," and "[i]t does not follow from the prohibition against concealing evidence favorable to the accused that the prosecution must reveal before trial the names of all witnesses who will testify unfavorably." Weatherford v. Bursey, 429 U.S. 545, 559 (1977). Prior to Weatherford, this court also had held in United States v. Bolden, 514 F.2d 1301, 1312 (D.C. Cir. 1975), that under Brady the prosecution has no duty to disclose its witness list prior to trial in a noncapital case, citing the provision in 18 U.S.C. § 3432 that a person charged with a capital offense "shall . . . be furnished with . . . a list . . . of the witnesses to be produced on the trial for proving the indictment," and noting the defeat in 1975 of a proposal to amend Federal Rule of Criminal Procedure 16*fn6 to require disclosure of witness lists.
This court held in United States v. White, 116 F.3d 903, 918 (D.C. Cir. 1997), citing Weatherford and Criminal Rule 16, that "[t]he constitutional right to cross examine has never been held to encompass a right to pretrial disclosure of prosecution witnesses." See also United States v. Nevels, 490 F.3d 800, 803 (10th Cir. 2007); United States v. Edwards, 47 F.3d 841, 843 (7th Cir. 1995); United States v. Alessi, 638 F.2d 466, 481 (2d Cir. 1980); 2 Charles Alan Wright & Peter J. Henning, Federal Practice & Procedure: Criminal § 258 (4th ed. 2008); cf. United States v. Edmonson, 659 F.2d 549, 551 (5th Cir. 1981). "[T]he right to confrontation is a trial right, designed to prevent improper restrictions on the types of questions that defense counsel may ask during cross-examination," Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987) (plurality opinion), and "does not create a right to pretrial ...