U.S.A. v. Salgado

• Decision Date: 19 September 2000
• Docket Number: 99-5651,Nos. 99-5645,s. 99-5645
• Citation: 250 F.3d 438
• Parties: (6th Cir. 2001) United States of America, Plaintiff-Appellee, v. Luis Salgado (99-5645); Wilfredo Jambu (99-5651), Defendants-Appellants. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 438

250 F.3d 438 (6th Cir. 2001)

United States of America, Plaintiff-Appellee, v. Luis Salgado (99-5645); Wilfredo Jambu (99-5651), Defendants-Appellants.

Nos. 99-5645, 99-5651

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: September 19, 2000

Decided and Filed: May 18, 2001

Appeal from the United States District Court for the Western District of Kentucky at Louisville. No. 98-00067, Charles R. Simpson, III, Chief District Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

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[Copyrighted Material Omitted] Terry M. Cushing, Alexander T. Taft, Jr., ASSISTANT UNITED STATES ATTORNEY, Louisville, Kentucky, for Appellee.

William Yesowitch, BARBER, BANASZYNSKI & ASSOCIATES, Louisville, Kentucky, Michael M. Losavio, Louisville, Kentucky, for Appellants.

Before: BATCHELDER and COLE, Circuit Judges; GRAHAM, District Judge^*.

OPINION

GRAHAM, District Judge.

Appellants Luis Salgado (Case No. 99-5645) and Wilfredo Jambu (Case No. 99-5651) were named along with two other defendants, Francisco Portuondo-Gonzalez and Daniel Rosalez, in a two-count indictment filed on June 1, 1998 in the Western District of Kentucky. Count 1 of the indictment alleged a conspiracy on or about May 1, 1998, to possess with the intent to distribute cocaine in violation of 21 U.S.C. § 846. Count 2 of the indictment charged the defendants with possessing with intent to distribute five kilograms of cocaine in violation of 21 U.S.C. §841(a)(1).

The case against Salgado and Jambu was tried before a jury, and on January 29, 1999, the jury returned a verdict of guilty on both counts against both defendants. A sentencing hearing was held on May 3, 1999, and the appellants were sentenced to a term of incarceration of 121 months. The appellants now assert several claims of error on appeal.

I. Facts of the Case

The evidence presented at trial, including the testimony of co-defendant Daniel Rosalez, reveals that Francisco Portuondo-Gonzalez was a distributor of cocaine in the Louisville, Kentucky area. His source of cocaine was Eduardo Garcia, a resident of Miami, Florida. Portuondo-Gonzalez and Garcia used Garcia's silver Mustang to transport cocaine from Florida to Louisville in April of 1998. Portuondo-Gonzalez and Garcia would drive the car to Florida and pick up the cocaine, then Portuondo-Gonzalez would fly back to Louisville, and Garcia would drive the Mustang back with the cocaine concealed under a bumper cover.

Shy Heath, a Louisville distributor of cocaine, purchased cocaine from Portuondo-Gonzalez. Portuondo-Gonzalez, who spoke little English, enlisted the services of Rosalez to act as an interpreter. On or about April 26, 1998, Shy Heath purchased approximately two-and-a-half kilograms of cocaine from Portuondo-Gonzalez. After the sale on April 26, 1998, Portuondo-Gonzalez left for Florida to obtain more cocaine, but his house was broken into and both Portuondo-Gonzalez and Garcia flew back to Louisville. Rosalez overheard a conversation between Portuondo-Gonzalez and Garcia indicating that Luis Salgado, also known as "Wicho," was going to be driving the Mustang loaded with the cocaine to Louisville that week.

Heath was arrested shortly after the purchase of cocaine on April 26, 1998, and agreed to act as an informant. He agreed to make several monitored telephone calls to Portuondo-Gonzalez. During the week of April 26, 1998, Heath spoke with Rosalez about purchasing additional cocaine from Portuondo-Gonzalez. Portuondo-Gonzalez informed Rosalez that he would have seven kilograms of cocaine. Heath later called Portuondo-Gonzalez and requested five kilograms of cocaine. Portuondo-Gonzalez told him the cocaine would arrive on Friday. Heath negotiated with Portuondo-Gonzalez for the sale of five kilograms of cocaine at a price of $22,000 per kilogram, scheduling the transaction for 9:00 p.m. on Friday, May 1, 1998.

Telephone toll records revealed that calls were placed between Salgado's cell phone and Portuondo-Gonzalez's phone on April 26, 29 and 30, 1998, and on May 1, 1998. Calls were also placed from a phone registered to Jambu to Salgado's cell phone on April 29 and 30, 1998, and on May 1, 1998.

Salgado arrived in Louisville on May 1, 1998. Telephone records revealed that a phone call was made on Salgado's cell phone to the telephone of Portuondo-Gonzalez at approximately 1:25 p.m. Portuondo-Gonzalez left his residence located on Patterson Drive in his Camry at approximately 1:29 p.m. and drove to a Shoney's Restaurant in the area of Fern Valley Road and I-65, near the location of the Tanglewood Apartments on Bermuda Lane where Wilfredo Jambu resided. Salgado drove to a restaurant where he traded cars with Portuondo-Gonzalez, then proceeded in Portuondo-Gonzalez's Camry to the Patterson Drive residence.

Salgado was seen in the company of Jambu at approximately 5:01 p.m. at the Patterson Drive address. At approximately 7:57 p.m., Jambu left the Patterson Drive residence with two women and a child and proceeded to his residence on Bermuda Lane. Portuondo-Gonzalez, Salgado and Rosalez remained at the Patterson Drive residence. At approximately 8:20 p.m., Salgado was observed talking on a phone, and at approximately 8:23 p.m., Jambu left his apartment on Bermuda Lane and was seen arriving at the Patterson Drive address at approximately 8:30 p.m. The surveillance officer observed Jambu open the trunk of his car, look to the right and to the left, then proceed to the front of the house. He appeared to be carrying something in his right hand.

According to Rosalez, Jambu entered the house through the door from the garage into the kitchen and delivered a brown paper grocery store bag. Jambu stated to Portuondo-Gonzalez, "I brought the shit" (meaning the cocaine) and said "I'll call you later." Jambu left at 8:34 p.m. and returned to his apartment on Bermuda Lane. Within the next half-hour, Rosalez was looking out the garage door toward the patio area, which extended to the fence, and observed a figure walking toward the fence. At approximately 8:55 p.m., Portuondo-Gonzalez was seen by the surveillance officer walking from the rear of the yard along the fence line.

A search warrant was executed on the Patterson Drive residence at approximately 9:15 p.m. on May 1, 1998. Portuondo-Gonzalez was found holding the wrappings from the five kilograms of cocaine. The wrapping consisted of plastic wrap, dryer sheets and duct tape. Proceeding to the area along the fence where Portuondo-Gonzalez had been seen earlier, officers found a brown paper bag which had been placed inside a blue plastic bag. A drug dog alerted to the package, which was found to contain five kilogram bricks of suspected cocaine. The cocaine was subsequently analyzed and was found to be 5,011 grams of eighty-three percent pure cocaine.

During the search, phone calls were placed from the phone at Jambu's apartment to Salgado's cell phone. Jambu and Portuondo-Gonzalez's wife left the Bermuda Road apartment and drove in the direction of the Patterson Drive address, but were stopped and arrested.

On May 1, 1998, the police located the silver Mustang in the parking lot of the Tanglewood Apartments. A drug dog alerted to the left rear quarter panel where it met the bumper. A search of the Mustang revealed that the vehicle, which was purchased by Garcia on April 8, 1998, in Tampa, Florida with sixteen miles on it, had 8,881 miles on the odometer. A key found in the car fit the lock of Jambu's apartment door.

At the time of his arrest on May 1, 1998, Salgado gave a statement to the police. He gave a Miami, Florida, address and provided his cell phone number. He stated that he had come to Louisville to visit a cousin, Jambu's girlfriend. He stated he thought the car he had driven from Florida was a rental car, but he did not remember what kind of car it was, who gave him the car or where the car was. He stated he arrived in Louisville at approximately 1:30 or 2:00 p.m. and received a phone call from Portuondo-Gonzalez, who gave him directions to a restaurant. He gave the car to Portuondo-Gonzalez at the restaurant and drove to Portuondo-Gonzalez's residence in his Camry.

II. Sufficiency of the Evidence

Salgado and Jambu assert that the evidence at trial was insufficient to sustain their convictions for conspiracy and possession with the intent to distribute cocaine, and that the trial court erred in denying their motions for a judgment of acquittal. Our review of the denial of a motion for acquittal is de novo. United States v. Wuliger, 981 F.2d 1497, 1509 (6th Cir. 1992), cert. denied, 510 U.S. 1191 (1994).

"[A] defendant claiming insufficiency of the evidence bears a heavy burden." United States v. Maliszewski, 161 F.3d 992, 1005 (6th Cir. 1998), cert. denied, 525 U.S. 1184 (1999). In reviewing a claim of insufficient evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). The government may meet its burden through circumstantial evidence alone, and such evidence need not exclude every possible hypothesis except that of guilt. United States v. Jackson, 55 F.3d 1219, 1225 (6th Cir.), cert. denied, 516 U.S. 926 (1995).

In assessing the sufficiency of the evidence, "we do not weigh the evidence, assess the credibility of the witnesses, or substitute our judgment for that of the jury." United States v. Wright, 16 F.3d 1429, 1440 (6th Cir.), cert. denied, 512 U.S. 1243 (1994). In reviewing a defendant's claim of insufficiency, we draw all available inferences and resolve all issues of credibility in favor of the jury's verdict. Maliszewski, 161 F.3d at 1006.

In order to establish the offense of conspiracy under 21 U.S.C. § 846 alleged in Count 1 of the indictment,...