U.S. v. Levy-Cordero, LEVY-CORDER

Citation67 F.3d 1002
Decision Date07 March 1995
Docket NumberD,93-2015 and 93-2087,LEVY-CORDER,FORTY-ESTREMERA,Nos. 93-1679,ROMERO-LEWIS,s. 93-1679
Parties43 Fed. R. Evid. Serv. 192 UNITED STATES, Appellee, v. Victorefendant-Appellant. UNITED STATES, Appellee, v. William, a/k/a Caco, El Teniente, Defendant-Appellant. UNITED STATES, Appellee, v. Jose Samuel, a/k/a Sammy, Defendant-Appellant. . Heard
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Carlos E. Geigel, for appellant William Romero-Lewis.

Frank D. Inserni, by Appointment of the Court, for appellant Jose Samuel Forty-Estremera.

Lena Mitchell, Attorney, Criminal Division, Narcotic and Dangerous Drug Section, Department of Justice, with whom Jo Ann Harris, Assistant Attorney General, Theresa M.B. Van Vliet, Chief, Criminal Division, and Guillermo Gil, United States Attorney, were on brief for appellee.

Before TORRUELLA, Chief Judge, COFFIN, Senior Circuit Judge, and CYR, Circuit Judge.

TORRUELLA, Chief Judge.

Appellants were among thirty-nine defendants charged in a thirty-nine count superseding indictment. All three appellants appeal their convictions for conspiracy to possess with intent to distribute more than 10,000 kilograms of cocaine and more than 1,000 kilograms of marijuana. In addition, they appeal their convictions on various drug trafficking and drug possession charges. For the reasons stated herein, we affirm the convictions of appellants Jose Samuel Forty-Estremera and William Romero-Lewis. We remand the case of appellant Victor Levy-Cordero for further findings in accordance with this opinion.

BACKGROUND

The facts as the jury could have found them are as follows. Angel Rosa-Collazo ("Rosa-Collazo") and Jesus Manuel Forty-Estremera ("Manolo Forty"), who is the brother of appellant Jose Samuel Forty-Estremera ("Forty-Estremera"), were the leaders of a large conspiracy to import and distribute marijuana and cocaine in Puerto Rico In April 1988, Rosa-Collazo coordinated the importation of approximately 5,000 pounds of marijuana from Colombia. Forty-Estremera supervised a crew of men off-loading the marijuana on the beach near Humacao, Puerto Rico. The marijuana was then transported to and stashed at the home of co-conspirator Miles Johnson ("Johnson"). 3 The marijuana was then distributed from Johnson's home.

                between March 1987 and November 1990. 1  In early 1987, Rosa-Collazo, Manolo Forty, Forty-Estremera, and a co-conspirator named Cesar Castro-Gomez ("Castro-Gomez"), agreed to import a load of marijuana from Colombia to Puerto Rico.  Rosa-Collazo arranged for a Colombian supplier to provide the marijuana.  Castro-Gomez recruited appellant Victor Levy-Cordero ("Levy-Cordero"), who owned a boat that could be used to off-load the marijuana from the Colombian mothership.  On March 7, 1987, Forty-Estremera and other co-conspirators rented a house near Naguabo, Puerto Rico for stashing the drugs.  Over the course of three days, sometime in the weeks following the rental of the stash house, 2 various members of the conspiracy, including Levy-Cordero, Castro-Gomez, and Manolo Forty, off-loaded 5,000 pounds of marijuana from the Colombian ship and brought it to the beach near the stash house.  Forty-Estremera helped supervise a crew of about eight men who took the marijuana from the beach to the stash house.  Forty-Estremera was responsible for paying the men
                

In May 1988, Rosa-Collazo and Manolo Forty directed several co-conspirators in the importation of approximately 300 kilograms of cocaine from Colombia to Puerto Rico. Rosa-Collazo paid Forty-Estremera $60,000 to store the cocaine at his home for several hours. The conspirators imported two more loads of cocaine in September 1988, one load in October 1988, one load in November 1988, a load in March 1989, another in April 1989, three loads in May 1989, and one load in November 1990. In addition, there were unsuccessful attempts to import cocaine in September 1988 and March 30, 1990. In total, the conspiracy imported over 7,000 kilograms of cocaine during this period.

The cocaine was usually imported from Colombia. The operating procedure, which varied only slightly, was as follows. Rosa-Collazo would speak to his mostly Colombian suppliers via radio and arrange the logistics of the transactions. A group of co-conspirators, usually led by Manolo Forty, would either meet a Colombian mothership at sea or pick up cocaine dropped from a plane, and load the cocaine onto small boats. They would then bring the load of cocaine near the shore, where it would be transferred to a small raft and brought to the beach. A group of co-conspirators, usually supervised by Forty-Estremera, would be waiting on the beach to off-load the cocaine and transport it by car or truck to a pre-arranged stash house. The cocaine was occasionally stored at the homes of Johnson or Forty-Estremera. The cocaine would then be distributed from the stash house. Members of the conspiracy were paid in cash or cocaine.

After a twenty-day trial, Forty-Estremera was convicted of one count of conspiracy, two counts of importing marijuana, two counts of possessing marijuana with intent to distribute, ten counts of importing cocaine, ten counts of possessing cocaine with intent to distribute, and one count of attempting to import cocaine. Romero-Lewis was convicted of one count of conspiracy, two counts of importing cocaine, two counts of possessing cocaine with intent to distribute, and one count of attempting to import cocaine.

Levy-Cordero was convicted of one count of conspiracy, one count of importing marijuana, and one count of possessing marijuana with intent to distribute. 4

DISCUSSION

Appellants challenge their convictions on several grounds. We address these issues seriatim.

I. Severance

Romero-Lewis and Levy-Cordero argue that the district court abused its discretion in refusing to grant their motions, pursuant to Fed.R.Crim.P. 14, to sever their respective trials from that of Forty-Estremera. We begin our analysis of this issue with the maxim that persons who are indicted together should generally be tried together. See United States v. O'Bryant, 998 F.2d 21, 25 (1st Cir.1993) (citations omitted). "We reverse the decision to deny a motion for severance only upon a showing of strong prejudice, demonstrating a manifest abuse of discretion that deprived the defendant of a fair trial." United States v. DeMasi, 40 F.3d 1306, 1312 (1st Cir.1994) (quoting United States v. Nason, 9 F.3d 155, 158 (1st Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1331, 127 L.Ed.2d 678 (1994)). 5 When severance is denied, appellants bear the burden of proving "prejudice greater than that which necessarily inheres whenever multiple defendants ... are jointly tried." United States v. Diallo, 29 F.3d 23, 27 (1st Cir.1994) (quoting United States v. Walker, 706 F.2d 28, 30 (1st Cir.1983)). In this context, "prejudice means more than just a better chance of acquittal at a separate trial." Id. (quoting United States v. Boylan, 898 F.2d 230, 246 (1st Cir.), cert. denied, 498 U.S. 849, 111 S.Ct. 139, 112 L.Ed.2d 106 (1990)).

Romero-Lewis and Levy-Cordero contend that they were prejudiced by the volume of evidence presented against Forty-Estremera. Romero-Lewis notes that the government alleged only that he served as a boat captain in two shipments of cocaine. He contends that the evidence of his co-conspirators importing and distributing marijuana and cocaine in a similar manner prevented the jury from considering the evidence against him independently. He also contends that this prejudice was compounded by the district court's decision to allow evidence of his co-conspirators' participation in unrelated drug trafficking pursuant to Fed.R.Evid. 404(b). Similarly, Levy-Cordero argues that a "miniscule" percentage of the total evidence presented in the case related to him. He also argues that admission of Rule 404(b) evidence relating to him "further contributed to the blending of the issues and the danger that the jury would not sort through the evidence properly."

It is true that much of the evidence in this case was directed primarily at Forty-Estremera, but this factor alone is not grounds for reversal. As we have explained, the mere fact that a "minnow" stands trial with a "kingfish," and the government aims most of its ammunition at the kingfish, does not, without more, necessitate separate trials. O'Bryant, 998 F.2d at 26. "It is well settled that '[e]ven where large amounts of testimony are irrelevant to one defendant, or where one defendant's involvement in an overall agreement is far less than the involvement of others,' the court of appeals must be 'reluctant to second guess severance denials.' " DeMasi, 40 F.3d at 1313 (quoting O'Bryant, 998 F.2d at 26).

Moreover, the indictment alleged that all three appellants were members of the four-year conspiracy to import drugs. The majority of the evidence introduced against Forty- To prevail on a claim of prejudicial spillover, a defendant "must prove prejudice so pervasive that a miscarriage of justice looms." United States v. Pierro, 32 F.3d 611, 615 (1st Cir.1994) (citations omitted). Because neither Romero-Lewis nor Levy-Cordero have satisfied this burden, we affirm the denial of their respective motions to sever.

Estremera to establish the conspiracy, therefore, would have been admissible in separate trials against Romero-Lewis and Levy-Cordero to establish the existence of the conspiracy. As we have previously explained, "[w]here evidence featuring one defendant is independently admissible against a codefendant, the latter cannot convincingly complain of an improper spillover effect." O'Bryant, 998 F.2d at 26 (collecting cases). We also note that the trial judge in this case gave...

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