U.S. v. Sanchez
| Decision Date | 16 January 1984 |
| Docket Number | No. 81-5708,81-5708 |
| Parties | 14 Fed. R. Evid. Serv. 1477 UNITED STATES of America, Plaintiff-Appellee, v. Asnaldo SANCHEZ, a/k/a Hernando, Jesus Gonzalez, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Carl L. Masztal, Miami, Fla., for Sanchez.
Sheryl Joyce Lowenthal, Miami, Fla., for Gonzalez.
Caroline Heck, Asst. U.S. Atty., Jon A. May, U.S. Atty., Miami, Fla., for plaintiff-appellee.
Appeals from the United States District Court for the Southern District of Florida.
Before FAY and KRAVITCH, Circuit Judges, and ATKINS, * District Judge.
The appellants, Asnaldo Sanchez and Jesus Gonzalez, were tried and convicted by a jury of conspiracy to import cocaine in violation of 21 U.S.C. Secs. 952(a) and 963, and of attempt to import cocaine in violation of 21 U.S.C. Secs. 952(a) and 963 and 18 U.S.C. Sec. 2. Gonzalez was also found guilty on two counts of importation of cocaine, 21 U.S.C. Sec. 952(a) and 18 U.S.C. Sec. 2, and two counts of possession of cocaine with intent to distribute, 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2.
The appellants' convictions arose out of an extensive Drug Enforcement Agency (DEA) undercover operation known as Operation Grouper investigating the drug trade in the Bahamas and South Florida. Two of the agents involved in Operation Grouper, Thomas Weed and Peter Sarron, were the primary witnesses for the government at trial. They testified to three different occasions when the appellants had acted to bring cocaine into the United States.
Agent Weed testified that he and a confidential informant, Thomas Mallis, had met on the night of July 26, 1979 with Gonzalez and Emilio Carreras 1 and that they had proceeded to a hotel where they met with two Colombians, Carlos Zaccour and a man identified as Hernando. Zaccour gave Weed two suitcases with fake compartments that he said contained five kilograms of cocaine. The group returned to Gonzalez's boat, a yellow, twenty-four foot Formula, and the packets, after some difficulty, were placed in secret compartments in the boat's deck. The compartments were then treated by Gonzalez with fiberglass and painted over to match the deck's color. Early the next morning, Gonzalez and Carreras departed for the United States with the packets secreted aboard the boat. Gonzalez had told Weed that he was to receive $5,000 per kilogram for smuggling the cocaine.
Although Weed alerted Customs Officials in Florida, the shipment was never intercepted. On August 8, 1979, however, Weed visited Gonzalez at his home in Miami and asked him if they had succeeded in smuggling the cocaine. Gonzalez replied that they had gotten the cocaine in, but that he had made only $10,000. Gonzalez also told Weed that the cocaine was for a friend of Sanchez's named Rafael.
Weed further testified that on August 16, 1979, he ran into Sanchez at a convenience store in Miami and that he had asked him if they had succeeded in smuggling the cocaine. Sanchez replied that they had been successful, but that he had personally not made any money. Upon being asked by Weed whether he appreciated Weed's help, Sanchez replied affirmatively.
The second incident took place on September 29, 1979, when a Customs aircraft followed the yellow Formula from the Bahamas to Miami. Upon docking, the boat was seized on the pretext that it had not cleared Customs. The boat's two occupants were Gonzalez and Carreras. The vessel was then taken to the Customs House where 1.64 kilograms of cocaine were discovered in the secret compartments. A sham cocaine substance was substituted, and the boat was returned to Gonzalez after he paid a $1500 fine.
Agent Sarron testified that six days later, on October 5, 1979, he and Mallis met with Sanchez at Sanchez's home and that Sanchez told him that he wanted his help in bringing in two suitcases of cocaine from the Bahamas. Sanchez also told Sarron of Gonzalez's experience with the boat being seized and stated that, although no one had been arrested, the cocaine had been no good and had to be discarded. That same evening Sarron met with Gonzalez and was again told about the boat being seized and the cocaine turning out to be bad. Gonzalez also solicited Sarron's help in bringing in another shipment of cocaine.
The final episode took place on October 7, 1979. United States Customs Agents, maintaining surveillance for the yellow Formula, spotted it arriving at the marina shortly after sunrise. Gonzalez and Carreras were stopped as they were about to tow the boat out of the marina, and the boat, along with the truck and trailer, was again seized. A search of the boat led to the discovery of over four kilograms of cocaine hidden in the boat's deck compartments. When Gonzalez returned to claim the boat two days later, he was read his rights by a Customs Officer and informed that cocaine had been discovered aboard the boat. Gonzalez disclaimed any knowledge of the cocaine and also denied knowing how to use fiberglass or having had any work done on the boat within the last thirty days. He was then released, but the boat was kept by Customs.
On December 6, 1979, Sanchez told Weed and Sarron that Gonzalez's boat had been seized but that Gonzalez had not been arrested. At a later meeting, on September 4, 1980, Sanchez again informed Weed that Gonzalez had lost his truck, trailer, and boat, but that Gonzalez was lucky to not have been arrested.
Sanchez, Gonzalez, and Carreras all testified at trial, each denying any involvement in a conspiracy to import cocaine. They admitted that they knew Agents Weed and Sarron, but only as friends and did not know of their involvement in the drug trade. Sanchez also claimed he was in New York on business on August 16, 1979, the date on which Weed stated he had met Sanchez at the convenience store.
Both Sanchez and Gonzalez challenge their convictions on several grounds: that there was insufficient evidence to support their convictions, that the court improperly admitted coconspirator hearsay statements into evidence, and that they were denied a fair trial due to certain prejudicial answers by government witnesses. Gonzalez also attacks his convictions on the charges arising out of the October 7, 1979 episode as violative of his rights to a speedy trial and due process.
Challenges to the sufficiency of the evidence are measured by the standard delineated in United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B) (en banc), 2 aff'd on other grounds, --- U.S. ----, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983):
It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided that a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt. A jury is free to choose among reasonable constructions of the evidence.
In making this determination, we must view the evidence in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), and accept reasonable inferences and credibility choices by the fact-finder, United States v. Gonzalez, 719 F.2d 1516, 1521-22 (11th Cir.1983).
To establish a conspiracy, the government must prove that "there was an agreement between two or more persons to commit a crime, that each conspirator knew of, intended to join, and participated in the conspiracy." United States v. Glasgow, 658 F.2d 1036, 1040 (5th Cir. Unit B 1981). An overt act is not required, only proof that the defendant conspired to commit the prohibited offense. United States v. Anderson, 651 F.2d 375, 379 (5th Cir. Unit A 1981).
The evidence presented by the government establishes that both Gonzalez and Sanchez were participants in a conspiracy to import cocaine. The evidence shows that Gonzalez on three separate occasions, with Carreras' help, brought cocaine into the United States from the Bahamas; twice the shipments were seized. The evidence also shows that Gonzalez's acts were part of an agreement with other individuals, namely Zaccour and Sanchez, to import cocaine in violation of United States law. Although Gonzalez denied any knowledge of the transactions, the credibility choice between Gonzalez's testimony and that of the government agents was for the jury. Gonzalez, supra.
Likewise, the testimony of Agent Sarron establishes Sanchez's role in the conspiracy. In a meeting with Sarron on October 5, 1979, Sanchez actively solicited the agents' assistance in bringing into the United States two suitcases of cocaine that Zaccour was holding in the Bahamas. Sanchez's knowledge of the conspiracy was also evidenced by his conversations with the agents when he related in detail what had happened to the various shipments Gonzalez had brought into the United States.
Both Sanchez and Gonzalez contend that there was insufficient evidence verifying either that the substance involved in the July 26, 1979 shipment was cocaine or that it ever reached the United States. Each also individually challenges the sufficiency of the evidence linking them to the attempt to import.
Although the identity of a narcotic must be established beyond a reasonable doubt, its nature may be established through circumstantial evidence. United States v. Crisp, 563 F.2d 1242 (5th Cir.1977). Agent Weed testified that, based on eleven years as a drug enforcement agent, he believed that the substance he was helping place in Gonzalez's boat was cocaine. See United States v. Ferguson, 555 F.2d 1372, 1373 (9th Cir.1977) (). Furthermore, the substance was referred to as cocaine by Gonzalez and Zaccour during the loading and by Gonzalez and Sanchez after it arrived. Based on Weed's testimony, and our obligation to accept...
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