U.S. v. Luciano-Mosquera

• Citation: 63 F.3d 1142
• Decision Date: 28 August 1995
• Docket Number: D,LUCIANO-MOSQUER,Nos. 92-1923,LUGO-MAY,PAGAN-SAN-MIGUE,PAVA-BUELB,GONZALEZ-VALENTI,s. 92-1923
• Parties: 42 Fed. R. Evid. Serv. 1341 UNITED STATES of America, Appellee, v. Julioefendant, Appellant. UNITED STATES of America, Appellee, v. Raulefendant, Appellant. UNITED STATES of America, Appellee, v. Rafaelefendant, Appellant. UNITED STATES of America, Appellee, v. Carlosefendant, Appellant. UNITED STATES of America, Appellee, v. Edgarefendant, Appellant. UNITED STATES of America, Appellee, v. Carlosefendant, Appellant. to 92-1925, 92-1973, 92-1974 and 94-1657.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 1142

63 F.3d 1142

42 Fed. R. Evid. Serv. 1341

UNITED STATES of America, Appellee, v. Julio LUCIANO-MOSQUERA, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Raul LUGO-MAYA, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Rafael PAVA-BUELBA, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Carlos PAGAN-SAN-MIGUEL, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Edgar GONZALEZ-VALENTIN, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Carlos PAGAN-SAN-MIGUEL, Defendant, Appellant.

Nos. 92-1923 to 92-1925, 92-1973, 92-1974 and 94-1657.

United States Court of Appeals, First Circuit.

Argued June 8, 1995.

Decided Aug. 28, 1995.

Lydia Lizarribar-Masini, for appellant Luciano-Mosquera.

Ramon Garcia, for appellant Lugo-Maya.

Rafael Gonzalez Velez, for appellant Pava-Buelba.

Frank A. Ortiz, for appellant Pagan-San-Miguel.

Wilfredo Rios Mendez, for appellant Gonzalez-Valentin.

Epifanio Morales Cruz, Asst. U.S. Atty., with whom Guillermo Gil, U.S. Atty., Jose A. Quiles Espinosa, Senior Litigation Counsel, and Nelson Perez-Sosa, Asst. U.S. Atty., were on brief, for U.S.

Before SELYA, BOUDIN and LYNCH, Circuit Judges.

LYNCH, Circuit Judge.

At 2:45 a.m. on March 27, 1991, in the darkness of the night over a Puerto Rico beach, government flares brightened the sky as waiting police and customs officers surprised and arrested six men offloading eight bales of cocaine from two yawls. The men had brought 232.8 kilograms of cocaine to this country from Colombia. Others involved were arrested on land and on sea. Those arrests led ultimately to these appeals by five of the men, Carlos Pagan-San-Miguel, Edgar Gonzalez-Valentin, Raul Lugo-Maya, Rafael Pava-Buelba and Julio Luciano-Mosquera.

The appeals variously raise challenges to the sufficiency of the evidence, to limitation of cross-examination, to the admissibility of The convictions of defendants Pava-Buelba and Lugo-Maya are reversed on the firearms count (Count 4) and their sentences on that count are vacated. We affirm their convictions and sentences on the drug counts (Counts 1-3). The convictions and sentences of defendants Pagan-San-Miguel, Gonzalez-Valentin, and Luciano-Mosquera are affirmed on all counts.

one defendant's statement, to remarks made during summation, to the reading of the transcript of trial testimony to the jury, to jury instructions, to the delay in transcribing the trial transcript, and to their sentences. Of these, only one raises serious issues--the question of the sufficiency of the evidence to support the convictions for carrying or aiding and abetting the carrying of a firearm during and in relation to the drug offense as to certain defendants.

I. FACTS

The jury heard or could properly infer the following facts. Oscar Fontalvo arrived in Puerto Rico in January 1991 to organize a scheme to smuggle cocaine into Puerto Rico. The scheme involved the drugs being flown from Colombia, airdropped into the sea at a prearranged location, picked up by a waiting boat and then sailed ashore. In drug parlance, this operation is called a "bombardeo." The waiting boat is called the "mothership." Fontalvo enlisted Pagan-San-Miguel and Jose Perez-Perez, who were to be paid in kind with 50 kilograms of cocaine. Pagan-San-Miguel introduced Fontalvo to Luis Soltero-Lopez, who agreed that his boat, the F/V Marlyn, would be used as the mothership. Soltero-Lopez recruited Jonas Castillo-Ramos to be captain, and Castillo-Ramos recruited two crew members for the drug run.

The operation was planned at a number of meetings in Puerto Rico in March 1991. Fontalvo, Pagan-San-Miguel, Perez-Perez and Soltero-Lopez attended the meetings. At least two of these meetings were at the home of Gonzalez-Valentin and, the jury could have inferred, Gonzalez-Valentin was there for at least one.

Perez-Perez brought a bag to one of the meetings at Gonzalez-Valentin's house. Pagan-San-Miguel and Perez-Perez opened the bag and showed Fontalvo and the others there (including Gonzalez-Valentin) a Colt M-16, Model A-1, 5.56 caliber fully automatic sub-machine gun with an obliterated serial number (the "M-16"). Later during the meeting, Perez-Perez brought Fontalvo over to his pick-up truck and pulled out from under the front seat an Intratec, Model TEC-9, semi-automatic .9mm pistol (the "Intratec pistol"). Referring to the weapons, Pagan-San-Miguel said they had brought them.

Communication amongst the Colombian and Puerto Rican participants, the plane, and the F/V Marlyn was essential. Pagan-San-Miguel and Fontalvo went to Miami and purchased a radio and antenna. Pagan-San-Miguel and Perez-Perez installed them on the F/V Marlyn in Puerto Rico. Code names were used for radio transmissions. The Colombian dispatcher was "Khadafi"; Pagan-San-Miguel was "Gigante" or "Padrino" or "Godfather." Fontalvo and Pagan-San-Miguel handled radio communications and set up a radio in the backyard of Gonzalez-Valentin's house, hiding it in a child's playhouse.

Soltero-Lopez, the F/V Marlyn's owner, flew to Colombia to board the plane so that during the bombardeo he could identify his boat and insure the drop was not made to the wrong boat (a not uncommon event). The F/V Marlyn went to the Dominican Republic to prepare for the airdrop. The Colombian drug owners, assigned a Colombian, Pava-Buelba, as a "load watcher" to observe the operation and report to the Colombian suppliers about the fate of the delivery. Pava-Buelba went to the Dominican Republic to meet Castillo-Ramos and the mothership.

On March 25, 1991, the F/V Marlyn and its crew left the Dominican Republic for its drug rendezvous. The Colombian load watcher, Pava-Buelba, joined the F/V Marlyn at sea after it had cleared Dominican Republic customs. The next morning, March 26, 1991, the boat and the plane made radio contact. The plane dropped eight bales of cocaine, which were taken aboard the F/V Marlyn.

Waiting in Puerto Rico, Fontalvo, Pagan-San-Miguel, Luciano-Mosquera and Gonzalez-Valentin received word that the airdrop had been successful. A call came in to Pagan-San-Miguel on a cellular phone in Luciano-Mosquera's car, warning that the operation had been discovered and that the police were watching. Pagan-San-Miguel reassured everyone, claiming he had "informants in the authorities" who would give him information and that he had a police scanner. Fontalvo went back to his cabin, leaving the others to proceed.

The F/V Marlyn anchored in Dominican Republic waters until approximately 5:30 p.m. and then began the trip to Buoy # 8, the designated meeting place for the F/V Marlyn and the two smaller boats ("yawls"). Around 12:30 a.m. or 1:30 a.m. on March 27, the F/V Marlyn and the yawls, all operating without running lights in the darkness, met several miles off the western coast of Puerto Rico at Buoy # 8. The cocaine was roped down into the yawls. Pava-Buelba, Lugo-Maya, Perez-Perez and Gonzalez-Valentin sailed the yawls to Guanajibo Beach, near Mayaguez, Puerto Rico.

The landing site on Guanajibo Beach that night was immediately behind the home of Pagan-San-Miguel's father. Two men, one fitting the description of Pagan-San-Miguel, the other of Luciano-Mosquera, approached the landing yawls from the beach and helped to offload the bales of cocaine.

Law enforcement officials had indeed been silently monitoring the operation. The airdrop had been observed by U.S. Customs Service airplanes, which videotaped the mothership. Coast Guard vessels had tracked the F/V Marlyn and the yawls. Camouflaged agents, hidden on the beach, had watched the offloading. Flares went up; arrest signals were given. The conspirators scattered, leaving bales in a line from the yawls to the home of Pagan-San-Miguel's father, along the roughly five-meter wide beach.

Pagan-San-Miguel sprinted and sought refuge under an abandoned Volkswagen at a house next to the beach. When found, he was wet and had his jeans rolled up to his knees. Gonzales-Valentin, dressed in camouflage pants and black T-shirt, completely wet and covered with sand, ran to the gate of Pagan-San-Miguel's father's house. He called out to Pagan-San-Miguel's father to open up, as the police were there. He was arrested at the gate.

Luciano-Mosquera and Pava-Buelba were found, about forty minutes after the flares went up, under a jeep parked in a carport by the building where bales of cocaine were left. Pava-Buelba was under the driver's side, Luciano-Mosquera under the passenger's. Pava-Buelba was wet; Luciano-Mosquera was dry.

Lugo-Maya headed to sea in one of the yawls and was intercepted by Coast Guard vessels. ¹ Perez-Perez was arrested near the beach. A later search of Lugo-Maya's escape yawl found a well-hidden box of 50 rounds of ammunition. That ammunition fit the Intratec pistol, which was found in the beached other yawl.

The M-16 was later found hidden in the undercarriage of the jeep where Luciano-Mosquera and Pava-Buelba had hidden in vain. The M-16 was on Luciano-Mosquera's side "at the place where the chass[is] and the [ ] springs of the front of the jeep are located." Two small beepers were found above the chassis on the same side where the M-16 was found. Two M-16 magazines with twenty bullets in each of them were found on the side of the Pagan-San-Miguel house. The machine gun and the pistol were the same ones Pagan-San-Miguel and Perez-Perez had shown to Fontalvo earlier.

No weapons were seen during the observation of the offloading operation and no weapons were found on any of the defendants. There had been no weapons on the F/V Marlyn. Neither Luciano-Mosquera nor Pava-Buelba had arrived at the beach by the jeep. There was no evidence as to who owned the jeep or how the jeep got there.

After being given his Miranda warnings, Pagan-San-Miguel later bemoaned his arrest to a police officer, saying he would have been given $300,000 for his role in the deal. Instead, he was given a sentence of 60 years...