U.S. v. Alvarez, 82-5780
| Decision Date | 02 July 1984 |
| Docket Number | No. 82-5780,82-5780 |
| Citation | 735 F.2d 461 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Israel ALVAREZ, Sr., Monolo Alvarez, Rafael Alvarez, Harry Bosquet, Jose Antonio Leyva, Israel Alvarez, Jr., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Raymond J. Takiff, Coconut Grove, Fla., for Bosquet.
Frank A. Rubino, Coconut Grove, Fla., Marc S. Nurik, Nurik, O'Donnell & Lazarus, Fort Lauderdale, Fla., for Israel Alvarez, Jr., Rafael Alvarez, Jose A. Leyva and Bosquet.
Stanley Marcus, U.S. Atty., Linda Collins Hertz, Norman Moscowitz, Jon May, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.
Appeals from the United States District Court for the Southern District of Florida.
Before GODBOLD, Chief Judge, TJOFLAT and HENDERSON, Circuit Judges.
Appellants challenge their convictions and sentences stemming from their involvement in a scheme to import controlled substances. Following a jury trial before the District Court for the Southern District of Florida, Israel Alvarez Sr., Israel Alvarez Jr., Manolo Alvarez, Rafael Alvarez, Jose Antonio Leyva and Harry Bosquet were found guilty of conspiracy to possess with the intent to distribute cocaine and marijuana in violation of 21 U.S.C. Sec. 841(a) and 21 U.S.C. Sec. 846 (Count I). Israel Alvarez Sr. and Manolo Alvarez were also found guilty of aiding and abetting in the utterance of counterfeit United States currency, in violation of 18 U.S.C. Sec. 472 (Count VII).
Israel Alvarez Sr. was sentenced to a term of fifteen years and a $15,000.00 fine on Count I and a concurrent term of five years on Count VII. Israel Alvarez Jr. received an indeterminate sentence pursuant to the provisions of the Federal Youth Corrections Act, 18 U.S.C. 5010(b). Defendant Manolo Alvarez was sentenced to a term of six years on Count I and a concurrent term of three years on Count VII. Rafael Alvarez, Jose Antonio Leyva and Harry Bosquet received sentences of ten, eight and four years respectively on Count I.
On July 23, 1981, confidential informant Guiseppi Cianci, who had previously engaged in illegal drug transactions and had agreed to assist the Drug Enforcement Agency (DEA) in an undercover reverse sting operation, and Juan Perez, a special agent of the DEA, met with Reginaldo Rodriguez, a drug trafficker in both Colombia and the United States. Cianci negotiated to sell Rodriguez 22,000 pounds of marijuana and seven and one-half kilograms of cocaine. It was agreed that Rodriguez would inspect the marijuana the following day and that he would later furnish the address for the delivery of the marijuana. This transaction was never consummated, however, because Rodriguez returned to Colombia on the next day, July 24, 1981.
On July 24, 1981, Perez and Cianci met Israel Alvarez Sr. and Leo Pinalva. Israel Alvarez Sr., who stated that he had worked with Rodriguez, asked the government agents to arrange for the sale of the marijuana at a reduced price and requested a sample bale. Before they parted, Israel Alvarez Sr. gave Perez and Cianci a telephone number and told them that in the future they were to avoid Rodriguez and deal with him exclusively.
On July 25, 1981, Perez and Cianci went to the residence of Israel Alvarez Jr. Israel Alvarez Jr. asked if they had brought the sample and Perez replied that it was in the car.
At about 6:00 p.m. Perez, Cianci, Israel Alvarez Sr. and Israel Alvarez Jr. went to another house. When they arrived, they found Rafael Alvarez and Harry Bosquet standing outside. Israel Alvarez Sr. asked Perez for the keys to his car so that Bosquet could get the sample. Perez gave Bosquet the keys and Bosquet pulled the agent's car up to the house next door, removed a box from the back seat, and carried it into the house. According to Perez, the contents of the box gave off a distinct odor of marijuana.
While Rafael Alvarez, Israel Alvarez Sr., Perez, Cianci and others stood outside, Israel Alvarez Jr. produced pictures of an airplane. In answer to Perez's question, Israel Alvarez Jr. said that the plane had been purchased by the family for their smuggling operation.
Perez remarked to Israel Alvarez Jr. that there were too many persons going in and out of the house. Israel Alvarez Sr. told Perez not to worry about it, noting that "they all work for me."
Later that day, Perez and Cianci met again with Israel Alvarez Sr., Israel Alvarez Jr. and Manolo Alvarez and proceeded to the house where they had previously delivered the marijuana. At their meeting place, they saw Rafael Alvarez and Harry Bosquet leaning against a pick up truck with a shotgun between them.
After going into the residence, Israel Alvarez Sr. pointed to two piles of marijuana on the floor and said that sixty percent of the sample was waste. Israel Alvarez Jr. commented that the marijuana was of very poor quality. Israel Alvarez Sr. stated that the sample appeared to be Jamaican marijuana, an assessment Leo Pinalva disagreed with. Israel Alvarez Sr. stated his intention to borrow $100,000.00 from Manolo Alvarez for the down payment on the marijuana. Manolo Alvarez spoke of mixing the marijuana with 1,200 pounds of a higher grade marijuana to upgrade its quality.
The group then returned to the residence where they had first met. There they found Rafael Alvarez and Harry Bosquet still standing outside. Manolo Alvarez, Israel Alvarez Sr., Israel Alvarez Jr., Leo Pinalva, Cianci and Perez went inside. Israel Alvarez Sr. asked Perez and Cianci what had happened to the cocaine. Israel Alvarez Jr. inquired if they could get a sample. Leo Pinalva said that he wanted two kilograms out of the seven and a half kilograms that Perez and Cianci had available for sale. During this discussion, Rafael Alvarez and Harry Bosquet entered the house.
The next day, July 26, 1981, Perez and Cianci met Manolo Alvarez and Israel Alvarez Sr. at a restaurant in Hialeah. Israel Alvarez Sr. stated that he could obtain some counterfeit bills and that this counterfeit money could be placed between legitimate bills before the money was passed from the government team to its supplier. Pick up of the money was scheduled for the following morning.
Perez and Cianci met alone with Israel Alvarez Sr. the next day. After a short time, Jose Leyva and Julio Ravel arrived. Perez inquired as to why they were present and Ravel told him that they were waiting for the truck with the marijuana. When Jose Leyva asked the whereabouts of Rafael Alvarez, Israel Alvarez Sr. said that he had gone to find a place to store the marijuana.
Israel Alvarez Sr. subsequently instructed Perez and Leyva to exchange car keys so that Leyva could use Perez's car to pick up some money. He informed Perez that Rafael Alvarez would be bringing money.
A short time later Rafael Alvarez returned. Leyva went into his car and retrieved a blue cosmetic case from the trunk. Upon Perez's instruction, Leyva placed it into Perez's car.
The party then proceeded to Hialeah to await the arrival of the balance of the money. A few minutes after they arrived, Leyva drove up in Perez's rental car. After exchanging keys with Leyva, Perez and Cianci then went to their car. Two blue leather suitcases (one a cosmetics case) were in the back seat. Perez and Cianci then left the group, ostensibly to deliver the money to their supplier.
As Perez and Cianci travelled, they noticed that they were being followed by a vehicle occupied by Rafael Alvarez, Theresa Mirando, and two other persons. Perez sped to DEA headquarters. The suitcases were subsequently opened and found to be full of money, including $46,000.00 in counterfeit currency.
The appellants first complain that their convictions under Count I of the indictment, which charged them with conspiracy to distribute a quantity of cocaine and a quantity of marijuana, were legally defective. Specifically, they contend that the district court erred in failing to instruct the jury that it must find proof beyond a reasonable doubt of both a cocaine conspiracy and a marijuana conspiracy.
This argument mischaracterizes the nature of the charge. What the government alleged was not two separate conspiracies, but a single conspiracy with multiple objectives.
Count I does not manifest the error of duplicity--that is, the joining of two or more separate crimes in a single count of an indictment. See, e.g., United States v. Goodman, 285 F.2d 378, 379-80 (5th Cir.), cert. denied, 366 U.S. 930, 81 S.Ct. 1651, 6 L.Ed.2d 389 (1961). Rather, Count I alleges only a single crime, conspiracy. As the Supreme Court stated in Braverman v. United States, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23 (1942):
The allegation of a single count of a conspiracy to commit several crimes is not duplicitous, for "The conspiracy is the crime and that is one, however diverse its objects." ... A conspiracy is not the commission of the crime which it contemplates, and neither violates nor "arises under" the statute whose violation is its object ... The single agreement is the prohibited conspiracy, and however diverse its objects it violates but a single statute ...
Id. at 54, 63 S.Ct. at 102, 87 L.Ed. at 28-29. (Citations omitted.)
The district court did not err in not requiring the jury to consider whether there were two conspiracies.
The appellants' second ground of error is essentially an extension of the first and fails for much the same reason. They maintain that the evidence at the trial was insufficient to prove a conspiracy to possess with intent to distribute cocaine, and that the failure to prove this conspiracy obviates their convictions.
It is well-settled in this circuit that where a conspiracy has multiple objectives, a conviction will be upheld so long as the evidence is sufficient to show that the defendants agreed to accomplish at least one of the objectives. United States v. James, 528 F.2d 999, 1014 n. 20 (5th Cir.) cert. denied sub nom, Henry v. United...
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