U.S. v. Bascope-Zurita, BASCOPE-ZURIT

• Decision Date: 13 October 1995
• Docket Number: ZURITA-FRANCO,BASCOPE-ZURIT,Nos. 94-3948,94-3950,D,s. 94-3948
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rocky Ernestoefendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jorge Enrique, also known as Coco, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1057

68 F.3d 1057

UNITED STATES of America, Plaintiff-Appellee, v. Rocky Ernesto BASCOPE-ZURITA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Jorge Enrique ZURITA-FRANCO, also known as Coco, Defendant-Appellant.

Nos. 94-3948, 94-3950.

United States Court of Appeals,

Eighth Circuit.

Submitted May 17, 1995.

Decided Oct. 13, 1995.

Larry Pace, Kansas City, MO, argued, for Rocky Bascope-Zurita.

Cenobio Lozano, Jr., Harrisonville, MO, argued, for Jorge Zurita-Franco.

Mark A. Miller, Asst.U.S.Atty., Kansas City, MO, argued, for U.S.

Before McMILLIAN, BEAM, and HANSEN, Circuit Judges.

HANSEN, Circuit Judge.

Rocky Ernesto Bascope-Zurita and Jorge Enrique Zurita-Franco appeal from the final judgments entered by the district court ¹ after they were found guilty of several drug offenses. They contend that the evidence is insufficient to sustain their convictions and that the district court erred by refusing to submit an instruction on venue. In addition, Bascope-Zurita argues that the district court erred by allowing jurors to ask questions during trial, and Zurita-Franco contends that the court erred in denying his challenge for cause of a venireperson. We affirm.

I.

In the spring of 1991, the Drug Enforcement Agency (DEA) learned that Maynard Gilbert had been obtaining large quantities of cocaine from Bolivia since the 1980s and transporting it for distribution to Kansas City and countries in Western Europe. Gilbert's source of cocaine in Bolivia was a Bolivian national named Olavo Subieta-Sierra (Subieta). To conceal the cocaine from authorities, Gilbert implemented the latest technology in the drug trade, which included suspending cocaine in shampoo and cosmetics, soaking leather items with cocaine, and having the cocaine bonded or molded to or within plastic or fiberglass mediums.

One of Gilbert's confidants was Richard Dye. Dye assisted Gilbert in the drug trafficking scheme by traveling to Bolivia to acquire and bring the cocaine back to Kansas City and by allowing Gilbert to use his Blue Springs, Missouri, home as a conversion lab to reclaim the cocaine from the medium. In July 1992, Dye decided to cooperate with the government and became a paid confidential informant. Dye's cooperation with authorities led to Gilbert's arrest in Germany on or about September 22, 1992, where Gilbert was later prosecuted and imprisoned for drug trafficking.

In November 1992, after Gilbert's arrest, Subieta negotiated with Dye for the sale of a cocaine-laden suitcase. Dye later traveled to Santa Cruz, Bolivia, acquired the suitcase, and discussed with Subieta the possibility of using other mediums to transport cocaine. DEA Special Agent Larry Tongate accompanied Dye on this trip, and Dye introduced Agent Tongate to Subieta as his partner. Subieta indicated that additional mediums made of plastic and leather were available in which to smuggle cocaine. During a subsequent transaction between Subieta, Dye, and Agent Tongate, Agent Tongate asked Subieta whether he could arrange for cocaine to be smuggled in hot tubs. Subieta responded affirmatively and agreed to broker a deal by locating someone who would manufacture the cocaine-laden hot tub and take care of the logistics in the transaction.

In March 1993, Dye again traveled to Santa Cruz, where a Subieta associate introduced Subieta and Dye to the defendants, Bascope-Zurita and Zurita-Franco, and stated that they were proficient in the process of bonding or molding cocaine into fiberglass and plastic products. After some discussion and negotiation between the parties, the defendants agreed to manufacture a cocaine-infused hot tub. Zurita-Franco, Subieta, and Dye went to a hot tub store and selected the hot tub that was to be reconstructed with cocaine. With the assistance of one Cesar Andia, a prominent figure in the Bolivian cocaine trade and frequent supplier to Subieta, Subieta procured and delivered to the defendants ten kilograms of cocaine base that were to be infused into the tub.

After Dye returned to Kansas City, Bascope-Zurita spoke with him by telephone about the progress being made on the hot tub along with the possibility of additional cocaine transactions. In May 1993, Dye and Agent Tongate returned to Santa Cruz to pick up and pay for the completed hot tub. Dye informed Subieta that he would not pay for the hot tub without first inspecting it. Subieta contacted Zurita-Franco to make the necessary arrangements and subsequently took Dye to see the tub. Zurita-Franco displayed the completed hot tub to Dye and Subieta at a local residence while Bascope-Zurita looked on. At some point, Subieta informed Dye that he had paid the defendants a $3,500 advance from funds that Agent Tongate had wired to Subieta.

The next day Dye and Agent Tongate met the defendants at a prearranged location to transfer the tub. The defendants took the completed tub out of their vehicle and placed it in the pickup truck that Dye and Agent Tongate were driving. Subieta arrived during the transfer, and Agent Tongate paid him the balance due on the hot tub. Subieta in turn paid the defendants their share for reconstructing the hot tub with cocaine base. After returning to the United States, Dye continued to maintain contact with Bascope-Zurita and had further discussions concerning constructing more cocaine-laden hot tubs as well as fusing cocaine into the fiberglass tops of automobiles. Dye also maintained contact with Subieta concerning future transportation of cocaine from Bolivia to Subieta's European clients. Subieta agreed to provide a cocaine-infused suitcase that was to be made by the defendants, but negotiations between Subieta and the defendants faltered and Subieta eventually obtained the suitcase from Cesar Andia.

The defendants were later arrested in Frankfurt, Germany, extradited, and returned to Kansas City, Missouri, for trial. They were subsequently charged, along with several other persons, in a multicount indictment with conspiracy to distribute in excess of five kilograms of cocaine in violation of 21 U.S.C. Secs. 841 and 846 (count I); conspiracy to import into the United States in excess of five kilograms of cocaine in violation of 21 U.S.C. Secs. 952, 960, and 963 (count II); and aiding and abetting in the attempt to import into the United States in excess of five kilograms of cocaine in violation of 21 U.S.C. Secs. 952, 960, and 18 U.S.C. Sec. 2 (count V). A jury found the defendants guilty on all three counts. The district court sentenced both defendants at the bottom of the identified Sentencing Guideline range to concurrent terms of 188 months (each defendant = Level 36, Criminal History Category I, resulting in a range of 188 to 235 months). The defendants appeal.

II.

A.

The defendants challenge the sufficiency of the evidence to sustain their convictions. In evaluating these claims, "[w]e consider the evidence in the light most favorable to the guilty verdict, giving the government the benefit of all reasonable inferences that might be drawn from the evidence." United States v. Smith, 32 F.3d 1291, 1292 (8th Cir.1994). "We reverse only if we conclude that a reasonable fact-finder must have entertained a reasonable doubt about the government's proof of one of the offense's essential elements." United States v. Ivey, 915 F.2d 380, 383 (8th Cir.1990) (citation omitted).

Bascope-Zurita and Zurita-Franco were convicted of two conspiracy offenses and one aiding and abetting offense. With respect to the conspiracy counts, the government was required to present evidence that the defendants "entered into an agreement with one or more other persons to violate the law." Smith, 32 F.3d at 1293. This agreement need not be formalized but can be shown through " 'a tacit understanding proven wholly by circumstantial evidence or by inferences' " drawn from the defendant's actions. Id. (quoting United States v. Searing, 984 F.2d 960, 964 (8th Cir.1993)).

Zurita-Franco admits that he manufactured the cocaine-laden hot tub and that a conspiracy to distribute cocaine and import cocaine into the United States existed involving Gilbert and Subieta, among others, which he refers to as the "Gilbert conspiracy." However, he contends that his production of the hot tub was not an act done in furtherance of the objectives of the Gilbert conspiracy because the only person from that conspiracy with whom he had contact was Subieta, and Subieta's role in the hot tub transaction was limited merely to serving as a broker and translator. He observes that we have held that it is possible to have two different conspiracies to commit the same type of crime and asserts that his conduct in this case at most supports offenses that were not charged in the indictment.

However, once a conspiracy was established (and Zurita-Franco readily concedes that the charged conspiracy existed but insists that he was not a member of it), only slight additional evidence was needed to link Zurita-Franco to it. United States v. Logan, 49 F.3d 352, 360 (8th Cir.1995). One does not have to have contact with all of the other members of a conspiracy to be held accountable as a conspirator. United States v. Hernandez, 986 F.2d 234, 236 (8th Cir.1993). A single conspiracy may be found when the defendants share a common overall goal and the same method is used to achieve that goal, even if the actors are not always the same. Cf. United States v. Holt, 969 F.2d 685, 687 (8th Cir.1992) (finding one conspiracy where defendants had same overall goal and same infrastructure existed for defendants' distribution activities). We apply a variety of factors under a "totality of the circumstances" test in determining whether single or multiple conspiracies exist, including the nature of the activities involved, the location where the alleged events of the conspiracy took place, the identity of the conspirators involved, and the time frame in which the acts occurred. United States v. Petty, 62...