Nos. 00-1615;-1639;-1641 UNITED STATES OF AMERICA v. JOSE VICTOR PELLOT, FELIX ORTIZ SANTIAGO, and FLOR M. FRANQUI Jose Victor Pellot

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 00-1615;-1639;-1641
UNITED STATES OF AMERICA
v.
JOSE VICTOR PELLOT, FELIX ORTIZ SANTIAGO,
and FLOR M. FRANQUI
Jose Victor Pellot, Appellant in 00-1615
Felix Ortiz Santiago, Appellant in 00-1639
Flor M. Franqui, Appellant in 00-1641
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Crim. Nos. 98-cr-00221-4-3-1 )
District Judge: Honorable William H. Walls
____________
Argued June 4, 2002
Before: SCIRICA, BARRY, and WEIS, Circuit Judges.
(Filed July 31, 2002)
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Thomas F. Dunn, Esquire (ARGUED)
281 Rock Road
Glen Rock, New Jersey 07452
Attorney for Appellant Jose Victor Pellot
Alexei Schacht, Esquire (ARGUED)
Paul R. Nalven, Esquire
30-16 Steinway Street, 2nd Floor
Astoria, New York 11103
Attorneys for Appellant Flor M. Franqui and Feliz Ortiz-Santiago
Elizabeth S. Ferguson, Esquire (ARGUED)
Assistant United States Attorney
Robert J. Cleary, Esquire
United States Attorney
George S. Leone, Esquire
Chief, Appeal Division
970 Broad Street, Room 700
Newark, New Jersey 07102-2535

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Attorneys for Appellee United States of America
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OPINION OF THE COURT
WEIS, Circuit Judge.
A jury convicted defendants Franqui, Santiago, Pellot, and others of
conspiracy to distribute and possess with intent to distribute more than five kilograms of
cocaine from January 1998 to August 21, 1998, in violation of 21 U.S.C. 841(a)(1)
and 846. Defendants Franqui and Santiago were also found guilty of possession with
intent to distribute more than five kilograms of cocaine on April 7, 1998, in violation of
21 U.S.C. 841(a)(1) and 18 U.S.C. 2. Franqui was sentenced to 200 months
imprisonment, Santiago to 324 months and Pellot, to 360 months.
Franqui and Santiago, represented by separate counsel, have filed a joint
brief. Pellot, also represented by separate counsel, has filed a brief on his own behalf.
The appeals have been consolidated and, for that reason, only one opinion will issue.
Because the opinion is not precedential and the parties are familiar with the
circumstances surrounding defendants’ arrests and convictions, only a brief sketch of the
facts will be presented. We will affirm.
The parties have advanced a number of claims of error. We will address
them seriatim, beginning with those in the joint brief submitted by Franqui and Santiago.
I.
1. Defendants assert that the stop and search of their vehicle on April 7,
1998, and the search of the defendants’ home thereafter pursuant to a warrant were
illegal and the evidence obtained as a result should have been suppressed. We reject the
defendants’ contentions. The District Court correctly found that the traffic stop was
justified. Defendant Franqui consented to the search of the car and evidence was validly
seized. See United States v. Watson, 428 U.S. 411, 424 (1976) (custody does not, in
itself, vitiate consent); United States v. Velasquez, 885 F.2d 1076, 1081-82 (3d Cir.
1989) (listing factors relevant to determining voluntariness of consent). Moreover,
probable cause existed for the issuance of a warrant to search for the defendants’
residence. United States v. Hodge, 246 F.3d 301, 305 (3d Cir. 2001); United States v.
Whitner, 219 F.3d 289, 297-98 (3d Cir. 2000).
2. Defendants next contend that the prosecution violated Brady v.
Maryland, 373 U.S. 83 (1963), by failing to timely notify them of witness Beltran’s
psychological problems. The evidence did come to light, however, either shortly before
the trial began or soon thereafter, and the judge took appropriate steps to ensure that this
belated disclosure did not prejudice defendants. He conducted a hearing on the witness’s
competency, allowed defendants to have an expert examine her, and adjourned the trial
for a day to allow defense counsel to further investigate the matter.
In addition, defense counsel vigorously cross-examined the witness on her
history as a patient in a mental hospital. There is little doubt that her credibility and
reliability were squarely presented to the jury. We therefore conclude that no Brady
violation occurred. See United States v. Starusko, 729 F.2d 256, 262 (3d Cir. 1984).
This conclusion, however, should not be understood as implying that we
have no concerns over the government’s delay in providing the information. We are
troubled by the prosecution’s failure to notify defense counsel of the witness’s history of
mental problems in advance of the trial. Ms. Beltran had pleaded guilty some seven
months earlier, and the matter of her past mental illness was raised during the colloquy.
Thus, there is no doubt that the government was aware of the issue. The eleventh-hour
disclosure necessitated a scramble by counsel and a delay in the trial that was entirely
avoidable.
We have in the past criticized prosecution delays in producing Brady
material and advised government attorneys that such conduct is not in accordance with
the high standard of professional conduct to which they should indeed, must adhere.
See Starusko, 729 F.2d at 264-65; United States v. Kaplan, 554 F.2d 577, 580-81 (3d
Cir. 1977).

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3. Defendants contend that the instructions to the jury were prejudicial, in
that the examples of constructive possession used too closely tracked the facts in this
case. We are not persuaded that, in context, the cited portions of the charge were unduly
prejudicial to the defendants.
4. Defendants assert that the District Court erroneously computed the
amount of drugs in calculating the appropriate Guideline range. Conceding that the 23
kilograms seized from their car were properly considered, the defendants, nonetheless,
protest the attribution of an additional 42 kilograms delivered to Luz Beltran by
commercial carriers during the relevant time period.
We have recognized the difficulties confronting a sentencing judge in
determining the amount of illegal drugs involved in conspiracies such as the one in this
case. Only rarely does physical evidence or testimony establish precise amounts of
narcotics sold or transported in these operations. Thus, in meeting the standards imposed
by the statute and guidelines, the sentencing judge inevitably must rely on estimations.
Here, defendants have not disputed what the investigation revealed that
between February 1998 and their arrest in April 1998, seven boxes of drugs were
delivered to Beltran. Based on the weight of two boxes of drugs seized at Airborne
Express in August 1998, the District Court adopted a conservative average of six
kilograms and applied it to the boxes received by Beltran on earlier occasions. We find
no error in that procedure. See United States v. Gibbs, 190 F.3d 188, 214-15 (3d Cir.
1999); United States v. Paulino, 996 F.2d 1541, 1548-49 (3d Cir 1993);U.S.S.G. 2D1.1
application n.12.
In sum, we conclude that defendants Franqui and Santiago have failed to
establish reversible error and, accordingly, their convictions will be affirmed.
II.
Defendant Pellot has raised additional allegations of error.
1. He first argues that the District Court should have granted a judgment of
acquittal based on insufficient evidence. We find no merit to this contention. Pellot
argues that because he was acquitted in one count where the testimony of Luz Beltran
was substantial, the jury must have found her testimony in other phases of the case
incredible. We reject that argument. There was sufficient evidence to establish Pellot’s
participation in the conspiracy since its inception.
2. Pellot also raises the same Brady issue as did Franqui and Santiago. We
need not revisit our discussion of why that contention is unavailing.
3. Pellot also contends that his conviction should be set aside because,
based on Apprendi v. New Jersey, 530 U.S. 466 (2000), 21 U.S.C. 841 is facially
unconstitutional. After the defendant filed his brief, this Court issued an opinion in
United States v. Kelly, 272 F.3d 622 (3d Cir. 2000), in which we concluded, as have a
number of other Courts of Appeals, that Apprendi does not render section 841
unconstitutional. Accordingly, we reject Pellot’s contention on this issue.
4. Pellot argues that the charge to the jury failed to state that the
conspirators agreed to distribute and process more than five kilograms of cocaine.
Because no objection was raised at trial, the plain error standard applies.
We reject Pellot’s contention because the indictment in this case alleged
that defendant conspired to deliver more than five kilograms of cocaine. Moreover, in a
special interrogatory, the jury found that the government had proved that Pellot was
guilty of conspiracy to distribute more than five kilograms of cocaine. In these
circumstances, we cannot find plain error.
5. Finally, Pellot argues that the aggravating circumstances that raised his
sentence above the statutory minimum of twenty years should have been submitted to the
jury in accordance with Apprendi.
As we pointed out in United States v. Vasquez, 271 F.3d 93 (3d Cir. 2001)
(en banc), to obtain relief under Apprendi using the plain error standard the defendant
must not only demonstrate error in the court’s failure to submit the question of the
amount of drugs to the jury, but must, in addition, demonstrate that his substantial rights
have been affected. 271 F.3d at 99. Defendant cannot do so here because, even
assuming Apprendi applies, the presentence report classified him as a career criminal,
subjecting him to 30 years to life imprisonment. Therefore, even if Apprendi has validity
here, it would not have affected his sentence. We therefore find no reversible error.
Accordingly, the judgment against Pellot, as well as those applicable to

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Franqui and Santiago, will be affirmed.
_____________________________
TO THE CLERK:
Please file the foregoing Opinion.
/s/ Joseph F. Weis
United States Circuit Judge

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