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United States v. Alvarado

decided: August 9, 1989.

UNITED STATES OF AMERICA, APPELLEE,
v.
NOEL ALVARADO AND MAYRA SANABRIA, DEFENDANTS-APPELLANTS



Appeal from judgments of conviction entered upon a jury verdict in the United States District Court for the Southern District of New York, Inzer B. Wyatt, Judge, finding defendants-appellants Noel Alvarado and Mayra Sanabria guilty of various drug-related crimes. We consider whether Sanabria voluntarily waived her Miranda rights; whether Alvarado's conviction on a firearms count was based upon sufficient evidence; whether the use as evidence of Sanabria's redacted statements, denial of defendants' motions for severance, and limitation of Sanabria's cross-examination deprived defendants of a fair trial; and whether the verdicts on the firearms count were impermissibly inconsistent. Affirmed.

Van Graafeiland, Winter and Mahoney, Circuit Judges.

Author: Mahoney

MAHONEY, Circuit Judge:

Defendants-Appellants Noel Alvarado and Mayra Sanabria appeal from judgments of conviction entered upon a jury verdict in the United States District Court for the Southern District of New York, Inzer B. Wyatt, Judge.*fn1 The indictment charged both defendants in three counts: count one -- conspiring to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846 (1982); count four -- possessing approximately five ounces of a mixture containing cocaine, with intent to distribute it, in violation of 21 U.S.C. §§ 812 (1982 & Supp. V 1987), 841(a)(1) (1982), 841(b)(1)(C) (1982 and Supp. V 1987) and 18 U.S.C. § 2 (1982); and count five -- using and carrying firearms during and in relation to the above crimes in violation of 18 U.S.C. § 924(c) (1982 & Supp. V 1987).*fn2 The jury convicted Alvarado on counts one, four and five, and Sanabria on counts one and four, but acquitted Sanabria on count five.

On appeal, Sanabria argues that her waiver of Miranda rights was coerced, and the resulting statements should therefore have been suppressed; and that the redaction of her statements, limitation of her cross-examination, and denial of her motion for severance deprived her of a fair trial. Alvarado contends that the introduction in evidence of testimony relating Sanabria's statements (after redaction by substituting the words "another person" for Alvarado's nickname) deprived him of a fair trial; that his motion for severance was improperly denied; that there was insufficient evidence to convict him on count five; and that his conviction on count five must be vacated as inconsistent with Sanabria's acquittal on that count in view of the identity of the evidence against them.

We affirm.

Background

The evidence at trial established that Hector Colon, a confidential informant for the Bureau of Alcohol, Tobacco & Firearms ("BATF"), made several visits to defendants' apartment at 2329 First Avenue in New York, New York in order to purchase cocaine. On the evening of November 10, 1987, Colon proceeded to the second floor apartment at that address, where he purchased a small quantity of cocaine from a youth named Alex for $45.00. On the evening of November 13, Colon returned and was met by defendant Mayra Sanabria, who opened the door. Alex then appeared and sold Colon 2.5 grams of cocaine for $125.00. On November 17, Colon returned for the third time, carrying photographs of two guns that he offered to sell. Alex answered the door, took one of the photographs, and sold Colon two packages of cocaine for $50.00. Colon observed Sanabria inside the apartment on this visit.

Colon returned to 2329 First Avenue on November 18 for the fourth time, where he was met by Alex in the front of the building and told that there was nothing to sell, and that he should return later. Upon Colon's return fifteen to twenty minutes later, Alex informed Colon that he would have to buy from one "Choco," who was selling for Alex in the street. Colon then purchased a bag of cocaine from Choco. The fifth time Colon returned, on November 19, defendant Noel Alvarado answered the door to the apartment. Alex immediately came to the door and directed Colon to buy from Choco in the street. Colon thereupon purchased two bags of cocaine from Choco.

On the evening of November 20, 1987, Colon returned with several BATF agents who had a warrant to search the apartment. After knocking and receiving no response, the agents broke in. Alvarado, Sanabria and Alex were found in the apartment. The search of the apartment revealed 108 grams of cocaine, glassine bags, triple beam balance scales, heat sealers, strainers with a residue of white powder, a loaded pistol in a drawer, a bullet-proof vest, and a locked safe containing two loaded handguns and $2,980.00. The agents also recovered numerous papers and records, including Alvarado's birth certificate, Sanabria's automobile title, Alvarado's address book, two statements from a Holiday Inn in the name of "Mayra Alvarado" listing 2329 First Avenue, New York, New York as her address, and a Consolidated Edison bill for the apartment in Alvarado's name.

Alvarado, Sanabria, and the other alleged members of the conspiracy (Alex and Choco) were brought to BATF headquarters and questioned. Upon being taken from her holding cell, Sanabria waived her Miranda rights and was questioned for approximately thirty to forty-five minutes in the presence of three agents. Sanabria made statements which were presented to the jury by a BATF agent as follows:

Q. During that interview did she state to you in substance that she had told another person not to sell to the confidential informant because she thought she had seen him with a shield and thought that the confidential informant was a cop?

A. Yes.

Q. During that interview did she also state to you in substance that she had helped another person package the coke?

A. Yes.

Q. During that interview did she also state to you in substance that she knew the guns were in the apartment because she had played with them?

A. Yes.

Q. During that interview did she also state to you in substance that the main individual who supplied another person never dropped off the cocaine but would send one of the neighborhood teenagers as the runner?

A. Yes.

Q. Agent Polak, at or about the time of the interview was anything recovered from the defendant Sanabria?

A. Yes.

Q. What was that?

A. We asked her if she had any personal property besides jewelry and she displayed currency, United States currency. It was counted to be about $500.

She stated that she had obtained --

A. That she had obtained the money from another person by ...


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