U.S.A. v. Escobar-De Jesus

• Decision Date: 05 October 1999
• Docket Number: ESCOBAR-DE,No. 93-1608,93-1608
• Parties: (1st Cir. 1999) UNITED STATES, Appellee, v. EUSEBIOJESUS, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 148

187 F.3d 148 (1st Cir. 1999)

UNITED STATES, Appellee, v. EUSEBIO ESCOBAR-DE JESUS, Defendant, Appellant.

No. 93-1608.

United States Court of Appeals for the First Circuit.

Heard Oct. 5, 1999.

Decided Aug. 2, 1999.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

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Rachel Brill for appellant.

Thomas M. Gannon, attorney, Department of Justice, with whom Guillermo Gil, United States Attorney, and Jorge E. Vega-Pacheco, Assistant United States Attorney, were on brief for appellee.

Before Boudin, Circuit Judge, Reavley, Senior Circuit Judge,^* and Lipez, Circuit Judge.

LIPEZ, Circuit Judge.

This case involves a large drug trafficking organization that imported cocaine from Colombia and distributed it in Puerto Rico and New York from 1986 until 1990. In April 1991, as the climax of a lengthy investigation, a federal grand jury returned a thirty-four count superseding indictment charging defendant-appellant Eusebio Escobar-de Jesus ("Escobar") and seventeen other individuals not parties to this appeal with various drug-related offenses. In April 1993, a jury convicted Escobar of sixteen drug, assault, and weapons-related counts, including Count 1, engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848(a) & (c), and Count 12, causing an intentional killing while engaged in a continuing criminal enterprise in violation of 21 U.S.C. § 848(e).¹ This appeal followed, the disposition of which was deferred pending the Supreme Court's decision in United States v. Richardson, 119 S. Ct. 1717 (1999), on juror unanimity requirements applicable to a continuing criminal enterprise charge. After careful consideration of the record and Escobar's many arguments on appeal, we affirm all of the convictions.

I. Background

We recite the facts in the light most favorable to the verdicts, consistent with support in the record. See United States v. Rodrguez, 162 F.3d 135, 140 (1st Cir. 1998). We summarize below the facts presented during the trial, providing additional details as they become relevant to the discussion.

The March 26, 1986 Lajas Incident

Largely through the testimony of cooperating co-defendant Edwin Soto-Osorio ("Soto"), the government established that on March 26, 1986, Escobar directed Soto and co-defendants Florentino Rivera-Mojica ("Rivera") and Antonio Santos-Caraballo ("Santos") to accompany him to a dirt road in the middle of a sugar cane field in Lajas to meet a plane containing cocaine from Colombia. To demarcate the makeshift landing strip, the men placed white lights along the beginning of the road and yellow lights along the end of the road. The lights were powered by a car battery. After the plane crash-landed, the four men and several other individuals associated with Escobar retrieved much of the plane's drug cargo and transported it to nearby Loza. Following the departure of Escobar and his associates, law enforcement officers arrived at the scene of the crash and discovered cocaine in the plane.

The April 14, 1986 Shooting of Customs Agents

On April 14, 1986, co-defendant Eric Flores-Rivera ("Flores") drove a yellow truck to the Isla Grande airport and obtained more than one hundred gallons of aviation gasoline. Surveilling agents then observed Flores drive the yellow truck into the Potrero Cuevas Farm ("the farm") near Carolina. An agent also observed a blue truck driven by co-defendant Andres Morales-Cruz ("Morales") enter the farm. Waiting outside the farm, agents heard a plane flying overhead. Shortly thereafter, agents observed the yellow truck, a white van, and a blue truck driven by Escobar and carrying six passengers (four dressed in camouflage) leave the farm. Two of the surveilling agents followed the white van to a nearby town, where the van suddenly reversed direction and its occupants opened fire on the agents. Both agents were seriously wounded.

In the days following the shootings, agents searched the vicinity of the farm and discovered a clandestine landing strip made of dirt. They also found, inter alia, twenty heavy-duty lamps that had been purchased by Escobar, batteries, and a string that had been stretched along the makeshift landing strip. Escobar's fingerprints were on one of the lamps, and more than sixty gallons of the aviation fuel which had been brought to the farm by Flores were gone. Agents found the white van used in the shooting in the Loza River on April 16.

The November 1989 Intercepted Cocaine Shipment

In 1989 federal authorities began an investigation of Escobar that included court-ordered electronic surveillance and the use of a confidential informant named William Cedres. In order to infiltrate Escobar's organization, Cedres began managing a Loza grocery store and bakery, and, through his acquaintances with co-defendants Rivera and Hector Ros-Velasquez ("Ros"), was introduced to Escobar. Through his infiltration of Escobar's organization, Cedres learned that Escobar directed an organization of at least fourteen members.²

In early November 1989, Escobar and Rivera made plans to deliver a shipment of cocaine from Puerto Rico to New York on a commercial airlines flight. Cedres expressed interest in participating in the delivery, and Escobar agreed. On November 21, co-defendant Fernando Faccio-Laboy ("Faccio") delivered eighty kilograms of cocaine to Escobar, who in turn delivered the cocaine to Cedres in five suitcases. Rivera and Cedres placed official inspection seals from the United States Department of Agriculture on the five suitcases and presented them at the check-in counter at the airport. Rivera and Cedres boarded the flight, but the suitcases were seized upon arrival in New York by federal authorities. Rivera called Escobar in Puerto Rico to report the situation.³ Escobar later met with Faccio and a representative of the Ochoa family, part of Colombia's Medelln cartel, to discuss the lost cocaine.

December 1989: Planning for Future Importations

In December 1989 Escobar began to plan additional importations of cocaine from Colombia to Puerto Rico. On December 9 and December 13, Escobar and several subordinates traveled to Vieques, Puerto Rico, to inspect potential sites for clandestine airstrips to use in importing approximately 1,500 kilograms of cocaine from the Medelln and Cali cartels in Colombia. On or about December 20, Escobar and his subordinates also discussed the possibility of using a plane to drop the cocaine into the ocean near Guanica, where it would be picked up by speedboats directed by co-defendants Soto and Santos. During the month of December 1989 Escobar also discussed cocaine importation with Jose Alberto Ochoa-Vasco ("Ochoa"), a representative of the Medelln cartel.

The Murder of Martn Matos-Cruz

According to Cedres's testimony, in December 1989 Escobar asked him to kill Martn Matos-Cruz ("Matos"), who was the third-ranking member of Escobar's organization and had fallen out of favor with Escobar. On January 2, 1990, however, Escobar told Cedres that he had found another person, co-defendant Michael Cruz-Gonzalez ("Cruz"), to kill Matos. The same day, Escobar and Cruz traveled to Carolina to identify Matos's residence and on January 3, according to Cedres's testimony, Cruz shot and killed Matos outside Matos's residence.⁴ On January 5, at Escobar's request, Cedres gave Cruz $1,500 as a partial payment for the murder.

The March 1990 Attempted Importation

Throughout January and February 1990, Escobar and his confederates continued to plan drug importations, meeting at least fifteen times to discuss the logistics of the effort. Between March 5 and March 13, Escobar was in repeated telephone contact with several individuals, including Soto, regarding an anticipated cocaine delivery. On March 13, Escobar and his men attempted to import 320 kilograms of cocaine by air, but the flight was intercepted by Coast Guard and Customs Service aircraft, causing it to break off and return to Colombia.

Following this aborted importation, Escobar and his confederates continued to meet during March and April to discuss other ways to successfully import cocaine to Puerto Rico. On April 2, Mesa informed Escobar by telephone that a shipment of cocaine was ready for delivery and that he should arrange to receive it. Shortly thereafter, however, Escobar entered a drug rehabilitation program in order to avoid revocation of his parole. Cedres replaced him in meetings with representatives of the Medelln and Cali cartels, and kept Escobar informed of developments. On April 8, Cedres and Flores met Escobar at the drug rehabilitation facility to discuss arrangements for the importation. Before the importation could be executed, however, Escobar was arrested.

II. The Jury Instructions

A. Continuing Criminal Enterprise

Section 848, often referred to as the "kingpin" statute, makes it a crime to engage in a "continuing criminal enterprise." The statute provides:

[A] person is engaged in a continuing criminal enterprise if -

(1) he violates any provision of [the federal drug laws, i.e.,] this subchapter or subchapter II of this chapter the punishment for which is a felony, and

(2) such violation is part of a continuing series of violations of [the federal drug laws, i.e.,] this subchapter or subchapter II of this chapter -

(A) which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer [or supervisor or manager] and

(B) from which such person obtains substantial income or resources.

21 U.S.C. § 848(c). In this case, the jury convicted Escobar of Count 1, charging that he had engaged in a continuing criminal enterprise ("CCE") from on or about April 1986 until the date the indictment...