U.S. v. Cresta, s. 85-1010
| Decision Date | 23 July 1987 |
| Docket Number | Nos. 85-1010,85-1024,85-1022,s. 85-1010 |
| Citation | 825 F.2d 538 |
| Parties | 23 Fed. R. Evid. Serv. 687 UNITED STATES of America, Appellee, v. Robert D. CRESTA, Defendant, Appellant. UNITED STATES of America, Appellee, v. John J. GILLEN, Jr., Defendant, Appellant. UNITED STATES of America, Appellee, v. Anthony GRAVALLESE, Defendant, Appellant. UNITED STATES of America, Appellee, v. Guido IMPEMBA, Defendant, Appellant. UNITED STATES of America, Appellee, v. Gabriel CARVAJAL, Defendant, Appellant. UNITED STATES of America, Appellee, v. Ernesto AGUDELO, Defendant, Appellant. UNITED STATES of America, Appellee, v. Richard T. FORD, Defendant, Appellant. to 85-1028. |
| Court | U.S. Court of Appeals — First Circuit |
Philip Castleman, Springfield, Mass., for Robert D. Cresta.
Robert A. George, Boston, Mass., for Anthony Gravallese.
John C. McBride with whom McBride, Wheeler & Widegren, Boston, Mass., was on brief, for Guido Impemba.
Mark Dunlap, Portland, Me., for Ernesto Agudelo.
Ronald J. Chisholm, Boston, Mass., for Richard T. Ford.
Margaret D. McGaughey, Asst. U.S. Atty., Portland, Me., with whom Richard S. Cohen, Augusta, Me., U.S. Atty., and Joseph H. Groff, III, Asst. U.S. Atty., Portland, Me., were on brief, for U.S.
Before TORRUELLA, Circuit Judge, and WISDOM * and ALDRICH, Senior Circuit Judges.
This is a consolidated appeal from seven convictions returned in the United States District Court for the District of Maine. Robert D. Cresta, Richard T. Ford, John J. Gillen, Jr., Anthony Gravallese, Ernesto Agudelo, Gabriel Carvajal, and Guido Impemba were charged with eleven others in a two count superseding indictment. Count I charged all defendants with conspiracy to possess with intent to distribute an amount of marijuana in excess of 1,000 pounds in violation of 21 U.S.C. Secs. 841(a)(1), 841(b)(6), 846. Count II charged those same individuals with conspiracy to import a large quantity of marijuana into the United States in violation of 21 U.S.C. Secs. 952(a), 960, 963. The seven appellants were found guilty on both counts, except for defendant Cresta, who was found not guilty on Count II. 1
The sufficiency of the evidence is important to a number of the issues raised by this appeal. We therefore commence the opinion with a detailed summary of the evidence presented at trial.
The tale of misadventure presented at this lengthy trial involved a substantial cast of characters. Jose Montaner, the government's key witness, testified at trial that in 1978 he was working for a shipping company in Miami, Florida when he began to provide agents of the United States Customs Service with information about use of the company's freighters to bring drugs to the United States from Colombia.
In 1982, Montaner met defendant Agudelo through Hernando Serrano, a boat captain from Barranquilla, Colombia. Later that year, Montaner delivered money to Serrano for Agudelo. At that point, Agudelo and Montaner discussed plans to obtain a vessel for drug-smuggling.
In the fall of 1982, Montaner located the OMAR EXPRESS, a 1,000 ton, long-range capacity vessel, for Agudelo and Alberto Rossi. Observed by agents, Rossi paid Montaner $293,000 in cash for the vessel, which Montaner then gave to the agents. Five thousand dollars of it was deposited in Agudelo's bank account. Upon the completion of this transaction, Agudelo included Montaner in more of his activities.
On November 1, 1983, Montaner flew to Panama to meet Agudelo. A DEA agent accompanied Montaner, received regular reports from him, and confirmed that Agudelo and Rossi were in Panama. Agudelo told Montaner that the vessel ADINA, a 5-6000 ton freighter, was already off the coast of Colombia loaded with marijuana concealed under cement. It was ready to deliver the marijuana to the northeast coast of the United States, but was stalled as a result of United States military action in Grenada. Agudelo went to Bogota, Colombia, but called Montaner in Panama daily to inquire about the status of the troops Agents confirmed that Montaner returned to the United States on November 17, 1983. Agudelo used a portable radio Montaner had on his car to communicate with Enrique Coronado, the supplier of the marijuana, in Barranquilla. Agudelo then asked Montaner to take the radio and antenna at Agudelo's expense to Boston. Observed by the agents, Montaner, with his equipment, met Agudelo and defendant Carvajal at the Ft. Lauderdale airport on November 20. Thereafter, agents also observed the three arrive in Boston, where they were met by Gravallese and Rossi.
in Grenada. With Montaner's help, Agudelo hired Eduardo Peterson from Barranquilla, Colombia to take the ADINA to Boston, Massachusetts.
Agents followed Agudelo, Carvajal, Gravallese, Rossi, and Montaner to the rented home of Impemba and his girlfriend, Sherree Rogers, on Governor's Island, near Laconia, New Hampshire. The group visited with Impemba for three days. There the group looked at nautical charts and discussed the arrival of the ADINA. Agudelo said the vessel was loaded with 1,247 bales of marijuana weighing 48-52 pounds each and wrapped in Marlboro cigarette boxes.
Montaner rented a car and allowed the agents to install a tracking device on it. Assisted by Gravallese and a person named "Tommy," Montaner also installed on the car the radio and antenna he had brought from Miami.
Two days before Thanksgiving, on November 22, Montaner went with Gravallese, Impemba, Carvajal, Agudelo, and Rossi to Augustine's restaurant in Saugus to meet with the people who had been hired to unload the marijuana. Agents observed and photographed the meeting. Agudelo said he had already advanced $62,000 to the man in charge of the unloading crew, whom he described as "King Kong." While agents observed Montaner and Gravallese alone at a table, the latter told Montaner he worked at Augustine's and its owner and employees knew of the imminent arrival of marijuana and wished Gravallese well.
Eventually Porter and Cresta, the off-loaders, arrived at the restaurant and, observed by the agents, met with Impemba, Agudelo, Carvajal, and Rossi. Agudelo later told Montaner he gave Porter an additional $30,000, bringing the total already paid the off-loaders to $92,000. Agudelo complained that the unloaders "better start doing something." When Porter and Cresta left, agents followed Montaner, Carvajal, and Agudelo to Logan Airport, where they met Merlo, their radio contact in Miami.
On the return trip to Governor's Island, Impemba gave Agudelo $5-10,000 cash and explained how to use credit cards at pay telephones to make calls that could not be traced. Agents saw Agudelo repeatedly using pay telephones, occasionally in the company of Carvajal.
During the stay at Governor's Island, Montaner was told by Agudelo that the supplier of marijuana was Enrique Coronado from Barranquilla, Colombia and that Impemba represented the buyers and Carvajal was the financier of the operation.
On November 23 or 24, Agudelo reported to Montaner that he had learned from Coronado in Barranquilla that the arrival of the ADINA was imminent. A radio frequency of 14.460 megahertz and code names for Agudelo, the ADINA, and the Barranquilla contact were agreed upon to avoid detection. Coronado would be "Rata"; the ADINA would be "Alcon", "Halcoln", or "Pluma Blanca"; Agudelo would be "Manolo." Montaner passed this information to the investigators, who began to monitor the group's radio transmissions.
The ADINA was now expected to arrive a day or two after Thanksgiving. According to Agudelo, another vessel would meet the ADINA and its sixteen-man crew 200 to 300 miles off the coast of Maine and would bring the marijuana to a point in mid-coast Maine near a Coast Guard Station. However, bad weather continued to postpone the arrival of the ADINA. By November 25, Agudelo reported that the vessel was headed north to Canada and south from there to avoid attracting law enforcement attention. Later that same Agents, documents, and photographs confirmed that the group took a room at the Margate Hotel in Laconia. Carvajal located pay telephones through which information could be relayed to Agudelo who, agents confirmed, was staying with Gravallese at the Colonnade Hotel in Boston and was himself repeatedly using pay telephones. Gravallese dismissed Montaner's concerns about the $100 per day charge for the room at the Colonnade Hotel and bragged that after the ADINA operation was completed, he would build an eight bedroom home where the conspirators could stay as his guests. Agudelo reported to Montaner that Carvajal was unable to speak with Impemba because Impemba was with the buyers of the marijuana.
day, on instructions from Agudelo, Montaner drove Carvajal to New Hampshire to speak with Impemba about problems with the unloading plans.
As time passed, Agudelo complained to Montaner about emerging difficulties with Rossi, who was demanding more money. To mediate the situation, Agudelo arranged for a mutual friend named Leo Figarito, to come from Miami to Boston. Followed by the agents, Montaner was sent to the airport to pick up the intermediary. Since Montaner did not know Figarito, he met each of the possible flights from Miami with a sign that read "Are you Leo." When Montaner finally located Leo and identified himself as having been sent by Agudelo, Leo angrily complained about the use of the sign, saying that the area was "hot." During his brief stay in Boston, Leo rented a car for which Agudelo paid cash and insisted that the credit card slip be destroyed.
On November 27, agents followed Figarito, Montaner, Agudelo, Agudelo's family, and three others back to Governor's Island. Gravallese joined them. Montaner became alarmed when the tracking device the agents had installed on his rented car repeatedly activated Impemba's electronic garage door. Impemba gave Agudelo another $5-10,000 and instructed him to go...
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