U.S. v. Cuello, 78-5314

• Decision Date: 25 July 1979
• Docket Number: No. 78-5314,78-5314
• Citation: 599 F.2d 635
• Parties: 4 Fed. R. Evid. Serv. 1135 UNITED STATES of America, Plaintiff-Appellee, v. Luis A. CUELLO, Alvaro Bastides-Benitez, John Doe, a/k/a Hugo Hurtado, and Alvaro Carvajal, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 635

599 F.2d 635

4 Fed. R. Evid. Serv. 1135

UNITED STATES of America, Plaintiff-Appellee, v. Luis A. CUELLO, Alvaro Bastides-Benitez, John Doe, a/k/a

Hugo Hurtado, and Alvaro Carvajal, Defendants-Appellants.

No. 78-5314.

United States Court of Appeals, Fifth Circuit.

July 25, 1979.

Daniel Perez, Jr., Houston, Tex. (Court-appointed), for Cuello.

Javier L. Correa, Houston, Tex. (Court-appointed), for Doe and Carvajal.

James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Texas.

Before JONES, CLARK and GEE, Circuit Judges.

GEE, Circuit Judge:

Luis Cuello, Alvaro Bastides-Benitez, Alvaro Carvajal, John Doe, also known as Hugo Hurtado, and Linda Collazo, also known as Linda Lozado, were jointly indicted on one count of conspiracy to import cocaine. The district court granted the government's motion for severance as to Linda Collazo, and the remaining four defendants were tried together and convicted. Cuello, Carvajal, and Hurtado appeal raising various grounds of error, all relating to the admissibility and sufficiency of evidence. ¹ Because we find the admissible evidence insufficient to support the jury verdict of conspiracy to import cocaine, we reverse.

Jennie Valdes, an alleged coconspirator, testified at trial under a grant of immunity. Her testimony, somewhat difficult to recount both because of her language difficulties and because of internal inconsistencies, is substantially as follows. In September 1977, Collazo offered Valdes $500 per trip to take money to Colombia for the purchase of "merchandise," by which Collazo meant cocaine. Valdes refused. Subsequently, Collazo and her son flew to Cali, Colombia, followed shortly by her husband, Luis Cuello. Valdes' testimony raised the inference that Collazo had travelled to Colombia to arrange for the purchase of cocaine, but Valdes also testified that Collazo had gone to see about her rent property there. With regard to Cuello's trip to Colombia, Valdes testified both that Cuello had followed in response to a call from Collazo that she was sick and her baggage had been lost and that he had gone because Collazo wanted to introduce him to Alvaro Bastides and her other connections in Colombia. After Collazo's return from Colombia, she told Valdes that cocaine was arriving in New York aboard the CIUDAD DE BARRANQUILLA, that she was supposed to receive four kilograms of pure cocaine and four kilograms of cut cocaine, that Alvaro Bastides and Alvaro Carvajal would each receive like amounts, and that each of the three would receive a coded letter explaining the distribution of the merchandise. Valdes testified that Collazo did in fact receive such a letter from Colombia. Collazo subsequently learned that the ship would dock in Houston rather than in New York, and, because she was pregnant, she asked Valdes to accompany her to Houston when the ship arrived. Valdes initially refused but later agreed, testifying that she thought that the purpose of the trip to Houston was to pick up money that would be sent to Collazo by her delinquent tenants via sailors on the CIUDAD DE BARRANQUILLA.

On November 15, Cuello packed his bags and left after an argument with Collazo. He called her later that day from Houston, and Collazo told him that he was going to "mess things up" because his initials were not in the letter, only hers and Carvajal's and Bastides'. Carvajal also called Callazo on the 15th and told her that the ship had arrived. Collazo then withdrew $7,000 from the bank for the trip. On November 16, Collazo, Valdes, and Bastides flew to Houston, where they were met by Cuello and Carvajal. The five people stayed at Carvajal's apartment, along with Hugo Hurtado. Carvajal and Bastides made one trip to the docks on the 16th but returned, saying that they could not find the sailors. The following day Collazo and Cuello argued again about who would receive the merchandise on the ship; Collazo repeated that her initials were on the letter, not his. Afterward Bastides told Cuello that he would share his merchandise with Cuello. Then Carvajal and Bastides drove down to the docks again, and upon their return Carvajal said that the merchandise had been stolen. Meanwhile, Hurtado had warned Valdes that the merchandise should not be brought to the apartment because he had seen police tailing Carvajal and Bastides.

Late that night Collazo asked Valdes to stay until Sunday to help her and Bastides carry the cocaine back to New York. ² Valdes refused because she had planned to stay only two days. After an argument with Collazo, Valdes packed her bag and left, intending to hail a taxi for the airport. Carvajal, Bastides, and Cuello, fearing for her safety, followed her outside and offered to drive her to the airport. After putting her bag in the trunk, they persuaded her to remain. Then Carvajal and Cuello left on an errand and were stopped by DEA agents shortly thereafter. While the agents were searching the apartment, Valdes observed Collazo eat a copy of the coded letter, and she saw Bastides discard a copy in the trash.

The testimony of government agents substantially corroborated the testimony of Valdes in its objective aspects. In September 1977, Cuello, Collazo, and Bastides were placed under DEA surveillance in connection with the investigation of a suspected conspiracy to import cocaine aboard the Colombian merchant vessel CIUDAD DE BARRANQUILLA. On September 21, 1977, Cuello and Collazo arrived in New York from Cali, Colombia, and on November 13, Alvaro Bastides arrived in New Jersey from Cali, where he has three children and a small coffee farm. On November 15, 1977, Cuello travelled from New York to Houston, using an alias. The following day, Collazo, Bastides and Valdes flew to Houston, where they were met by Cuello and Carvajal. The five people were followed to Carvajal's apartment. Carvajal and Bastides drove to the pier area once on the 16th and once on the 17th, but on both occasions they were lost by surveillance and were never observed entering the docks. Hurtado was seen outside the apartment on at least two occasions, walking about the parking lot. Late on the night of the 17th, Carvajal, Cuello and Valdes were observed putting a bag in the trunk. Later, early on the morning of the 18th, Carvajal and Cuello left in the car, at which point the agents stopped them, suspecting that the cocaine had been retrieved from the ship and was now being moved. An extensive search of Carvajal's car and apartment did not turn up any cocaine or narcotic paraphernalia of any kind. The agents did, however, find an anonymous letter written in Spanish hidden under the wall-to-wall carpet of the apartment's upstairs bedroom. The letter directed that envelopes marked L-L-L belonged to "Linda," that envelopes marked A-C belonged to Alvaro Carvajal, and that envelopes marked A-B belonged to "A-B." The letter also noted the quantity of money that would be in each envelope. An expert witness testified that the quantities represented grams rather than dollars. The CIUDAD DE BARRANQUILLA was searched while it was in port at Houston and again when it arrived in New Orleans. The first search was not fruitful, but the second search turned up a package containing 234 grams of lidocaine hydrochloride ³; the package was marked "A-B." ⁴

Appellants variously urge (1) that the trial court erred in admitting out-of-court statements made by Collazo to Valdes, contending that there was insufficient independent proof of the existence of the conspiracy and of the appellants' participation in it; (2) that the trial court erred in admitting the letter, contending both that it was hearsay and that it was the fruit of an illegal search; (3) that the trial...