Appeal from the United States District Court for the District of New Jersey. D.C. No. 94-cr-25-1.
Before Stapleton, Mckee, and Rosenn, Circuit Judges
A federal grand jury indicted Rodolfo Bethancourt ("Bethancourt") and Reginaldo Haynes ("Haynes")*fn1 for conspiracy to import more than 500 grams of cocaine into the United States. After a pretrial hearing, the United States District Court for the District of New Jersey found that Bethancourt had knowingly and voluntarily waived his Fifth Amendment rights and concluded that a confession signed by Bethancourt would be admissible at trial. The court also concluded that the discovery by the Drug Enforcement Agency ("DEA") of $18,000 in cash at Bethancourt's residence would be admissible at trial.
After trial, the jury found the defendant guilty. The district court then sentenced Bethancourt to 121 months imprisonment, five years supervised release and a $12,500 fine pursuant to a total offense level of 32 under the United States Sentencing Guidelines ("U.S.S.G."). Bethancourt timely appealed, raising a number of issues relating to his trial and sentencing.*fn2
The Government charged Bethancourt and Haynes with conspiracy to import cocaine into the United States. Because of his United States military service, Haynes had access to military aircraft and he and Bethancourt planned that Haynes would obtain a military flight to Panama. There, Haynes would pick up a kilo of cocaine from a contact arranged by Bethancourt, return to the United States, and deliver the cocaine to Bethancourt. Accordingly, Haynes flew to Panama and obtained the kilogram of cocaine. He then attempted to board a military aircraft for the return flight to the United States, but was arrested before departing.
After his arrest, Haynes cooperated with the authorities. The DEA flew Haynes back to the United States and he attempted to set up a meeting with Bethancourt. Initially, he was unsuccessful, but after several attempts and one aborted meeting, Haynes met with Bethancourt and delivered a package containing fake cocaine. The DEA arrested Bethancourt immediately thereafter. Following his arrest, the DEA advised Bethancourt of his rights and had him sign a form in which he consented to the search of his residence and automobile. When the DEA searched his residence, they found $18,000 in cash under his bed. None of this is disputed.
The DEA then interrogated Bethancourt. He initially denied any involvement in the cocaine conspiracy, but eventually admitted his involvement. After six hours of interrogation, he signed a typewritten confession detailing the conspiracy. The district court admitted Bethancourt's confession and the discovery by the DEA of the $18,000 in cash in his house as evidence at trial.
Bethancourt appeals the admission of the confession, evidence of the discovery of $18,000 in cash under his bed, and the district court's enhancement of his base offense level from 26 to 32. On appeal, he also argues that the prosecution's rebuttal summation denied him due process and that in face of the Government's seizure of the $18,000 in cash, this conviction constitutes double jeopardy.
Bethancourt initially argues that the trial court erred by determining that he gave his confession voluntarily. This court applies plenary review to a district court's determination whether a confession was given voluntarily. Miller v. Fenton, 474 U.S. 104, 115-17, 88 L. Ed. 2d 405, 106 S. Ct. 445 (1985); United States v. Harris, 44 F.3d 1206 (3d Cir.), cert. denied, 131 L. Ed. 2d 731, 115 s. Ct. 1806, 63 U.S.L.W. 3772 (1995). "In determining whether a confession was voluntary, we must satisfy ourselves that the confession was the product of an essentially free and unconstrained choice by its maker, that it was the product of a rational intellect and a free will, and that the appellant's will was not overborne." United States v. Swint, 15 F.3d 286, 289 (3d Cir. 1994) (citation omitted). The central question is whether the authorities coerced the defendant's confession; if not, then the confession is voluntary. Id.
Bethancourt argues that his confession is clearly involuntary. He contends primarily that he did not actually "sign" his confession because he affixed a distorted "signature" to the confession. He maintains that the distorted and false "signature" demonstrated government coercion. He also asserts that "logically, the only Conclusion for this distorted signature is that [he] did not want to voluntarily sign his name to the document." He contends that "if he openly refused to sign the statement, the agents would have kept 'working' on [him] in an attempt to obtain the statement that they wanted." His decision to distort his signature on the confession does not show DEA coercion; on the contrary, it suggests that Bethancourt already was planning to circumvent the consequences of his confession.
Bethancourt testified at trial that he was handcuffed during the interrogation and that the DEA agents' manner was threatening. Conversely, the DEA agents who took the confession testified that Bethancourt was not handcuffed, that they did not threaten him, and that they gave him a meal during the interrogation. The trial court concluded that the DEA agents testified truthfully and that Bethancourt did not. Therefore, the court adopted the DEA agents' version of the interrogation and confession. We must do likewise because we will not review a district court's credibility determination. Government of Virgin Islands v. Gereau, 502 F.2d 914, 921 (3d Cir. 1974), cert. denied, 420 U.S. 909, 42 L. Ed. 2d 839, 95 S. Ct. 829 (1975). In face of the DEA agents' credited testimony, Bethancourt's distorted signature does not warrant reversal of the district court's finding that the DEA agents did not coerce the confession.
The appellant also argues that his confession was coerced because he did not sign it until nearly six hours after his interrogation began. However, the DEA agents testified that Bethancourt confessed to his involvement in the conspiracy after about two hours of interrogation; typing and verifying the content of the confession consumed the remainder of the time before he signed it. The agents further testified that Bethancourt reviewed the confession and that he made some changes to it before signing it. Thus, the implication raised by the defense that Bethancourt signed a government-produced confession after six hours of badgering is disingenuous. The testimony credited by the district court showed that the appellant actively participated in the drafting and correction of his confession. He admits that he initialed every paragraph and signed each page of the confession after it was completed; he neither requested the assistance of an attorney nor complained that he was being coerced. Except for his testimony on his distorted signature, Bethancourt does not point to any evidence showing that the DEA agents forced him to sign an incorrect or coerced confession. We therefore see no error in the trial court's admission of the confession.
Appellant next argues that the district court abused its discretion by allowing the Government to testify that it found $18,000 in cash at his home. This court reviews a district court's admission of evidence for abuse of discretion. United States v. Pelullo, 964 F.2d 193, 199 (3d Cir. 1992); United States v. Furst, 886 F.2d 558, 571 (3d Cir. 1989), cert. denied, 493 U.S. 1062, 107 L. Ed. 2d 961, 110 S. Ct. 878 (1990).
Bethancourt contends that reference to the $18,000 found in his home was inadmissible because the Government did not connect it with the charged offense. Therefore, he argues that the money was irrelevant in this case. The district court found that the $18,000 in cash hidden under Bethancourt's bed was "clearly relevant concerning knowledge, intent and ability to engage in narcotics transaction." The court also concluded that "it's axiomatic that evidence concerning the possession or expenditure of large amounts of currency is admissible where the defendant is charged with a crime in which pecuniary gains [sic] is the basic motive."
This court will only find an abuse of discretion "when the action of the trial Judge is clearly contrary to reason and not justified by the evidence." Vizzini v. Ford Motor Co., 569 F.2d 754, 760 (3d Cir. 1977) (citations omitted). Here, the trial court held a hearing regarding the admissibility of this evidence, weighed the contrary arguments and concluded that testimony concerning the discovery of $18,000 in cash under Bethancourt's bed was relevant in supporting the Government's charge. The trial Judge's ruling is not "clearly contrary to reason" and the appellant's argument has no merit.
On a more serious note, Bethancourt contends that the Government "tainted the fairness of the proceedings by vouching for government witnesses in this case" and thus that his conviction must be reversed. In considering this issue, we note that it arises because the defense counsel initially qustioned the credibility of the government witnesses in his summation to the jury. Specifically, he challenged the truthfulness of Special Agent Wagner's testimony relating to the taking of Bethancourt's toll records and all the other information secured from his residence. Defense counsel also argued that the government agents typed up the confession and "they put stuff in there that [Bethancourt] was never gonna agree to;" and that faking his signature to the confession "tells you [the jury] that in no way are they the statements, are they the words, are they the concepts, or is that the confession of Rodolfo Bethancourt. It's theirs and they tried to make it his."
Such an argument and direct challenge to the conduct of the government agents required an appropriate response. The defense on appeal strenuously argues that the response went far beyond permissible legal parameters. The prosecution responded that there was no basis to the defendant's argument, pointing out the improbability of misbehavior by the government witness. The prosecution reasoned: "For what, ladies and gentleman? He's gonna risk his career? He's gonna risk his job? He's gonna risk going to jail? For what? To lie to you on the stand, ladies and gentleman? I submit not, ladies and gentleman." The prosecution also argued that its witnesses "don't make up lies. And they didn't lie here and they're not lying to you, ladies and gentlemen, when they tell you what they did. And they're not lying to you when ...