599 F.2d 635 (5th Cir. 1979), 78-5314, United States v. Cuello

Docket Nº:78-5314.
Citation:599 F.2d 635
Party Name: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.
Case Date:July 25, 1979
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 635

599 F.2d 635 (5th Cir. 1979)

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

Page 636

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...

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