U.S. v. Moncada, 95-1552

• Decision Date: 01 April 1996
• Docket Number: No. 95-1552,95-1552
• Citation: 101 F.3d 681
• Parties: NOTICE: THIS SUMMARY ORDER MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY, BUT MAY BE CALLED TO THE ATTENTION OF THE COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA. SEE SECOND CIRCUIT RULE 0.23. UNITED STATES of America, Appellee, v. Gustavo MONCADA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

Page 681

101 F.3d 681

NOTICE: THIS SUMMARY ORDER MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY, BUT MAY BE CALLED TO THE ATTENTION OF THE COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA. SEE SECOND CIRCUIT RULE 0.23.

UNITED STATES of America, Appellee, v. Gustavo MONCADA, Defendant-Appellant.

No. 95-1552.

United States Court of Appeals, Second Circuit.

April 1, 1996.

APPEARING FOR APPELLEE: Emily Berger, Assistant U.S. Attorney, EDNY, Brooklyn, NY

APPEARING FOR APPELLANT: Jeremy Gutman, New York, NY

E.D.N.Y.

AFFIRMED.

PRESENT: Hon. RICHARD J. CARDAMONE, Hon. JOHN M. WALKER, Jr., Hon. JOSEPH M. McLAUGHLIN, Circuit Judges.

On April 28, 1993, the United States Custom Service intercepted an Airborne Express package containing 5.8 kilograms of 86% pure cocaine in Miami, Florida. The package bore a delivery address of a bar in West Hempstead, NY, where Customs officials attempted a controlled delivery on May 3, 1994. When no one appeared to claim the package, agents reclaimed the box and returned it to Airborne's office in Ronkonkoma, NY. On May 4, 1993, a man claiming to be the addressee called Airborne's office and inquired about the package. He was informed that he could pick it up the next day. On May 5, at about noon, a white Chevrolet containing three men, Manuel Calderon, Sergio Morales, and appellant Gustavo Moncada arrived at the office. Calderon and Morales left the car and entered the building, with Moncada staying behind. A DEA special agent, posing as a desk clerk, asked the two for identification and Morales produced an identification card with the name of the addressee. Moncada remained outside, but at one point got out of the car and peered in through the window.

Upon claiming the package, Calderon and Morales went outside and, along with Moncada, placed it in the trunk of the Chevrolet. Calderon and Morales appeared to congratulate each other, but Moncada did not participate in the congratulations and gave no indication that he was pleased by the retrieval. The three men then left in the Chevrolet and drove back towards New York City; the agents followed in six or seven unmarked cars. After getting onto the Van Wyck Expressway, the car, which Moncada was driving, began to change lanes abruptly and increased speed. One officer testified that Moncada appeared to be nervous and to be checking his mirrors.

Shortly after the car exited the Van Wyck Expressway, the agents stopped the car and arrested all three men. Calderon and Morales gave the agents false identifications, but Moncada gave his true identity, and informed the agents of the other two men's true identities. The other two later gave their true identities. Moncada also told the officers that he had increased his speed and changed lanes because he had become frightened when he suspected that he was being pursued by some unknown persons.

Several months after their arrests, Calderon and Morales agreed to cooperate with the government. At trial, Morales testified that Moncada (with whom he lived) had received a phone call on May 4 from his brother, Alvaro Moncada, asking that he pick up a package on his behalf from Airborne. Alvaro stated that someone named "El Mono" was originally supposed to pick up the package, but because El Mono could not be found, someone else would have to do it. Moncada then telephoned Calderon, and asked that he call Airborne and inquire about the package.

According to Calderon, Moncada stayed on the line while he asked about the Airborne package. He was told that he could pick up the package the next day. On May 5, when the three...