United States v. Setien

929 F.2d 610 (11th Cir. 1991)

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Nature of the Case

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Facts

Martinez, an Eastern Airlines baggage handler, organized a scheme to smuggle cocaine from Colombia through the use of incoming commercial flights to be off-loaded in Miami. Each individual performed a specific task to accomplish removal of the luggage from the designated incoming flights and its delivery through the airport. Luis Setien (D), as lead man on a ramp, was responsible for directing his crew of baggage handlers toward the aircraft to be unloaded and supervising his crew as cocaine-filled suitcases were off-loaded. Initially, D had been paid $5,000 per flight for his silence regarding the conspiracy. Once he discovered what the others were involved in, his active participation increased and he was paid $10,000 per flight by Martinez. Charges were brought against all of the known participants. D's witness Max Mermelstein made a proffer of his testimony outside the presence of the jury. He testified that during the period that D was accused of having been involved in the cocaine importation conspiracy, they met regularly as social friends. Mermelstein was a high-level importer and distributor of cocaine throughout the United States. He offered D the lure of easy money if he would quit his job as an Eastern Airlines baggage handler and just hang around Mermelstein while he conducted his narcotics business. D refused and repeatedly reminded Mermelstein of the damage he was doing to society. P objected to Mermelstein's proffered testimony, on the ground that individual acts of good conduct cannot be permitted to demonstrate good character. D claimed that Mermelstein's offer was relevant to show he was offered an opportunity to do the same thing and refused. The court ruled it was irrelevant under Rule 405(b) and was not admissible under Rule 404(b). D was convicted and appealed.