865 F.2d 1260 (4th Cir. 1989), 87-5018 to 87-5020, U.S. v. Astorga

• Citation: 865 F.2d 1260
• Docket Number: 87-5043 and 87-5091.,87-5018 to 87-5020,87-5042,87-5024,87-5037,87-5023
• Date: 06 January 1989
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Francisco C. ASTORGA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. John Joseph ROUSH, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Luis TANG-FORTALECHE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Lucas Gerrardo Caballero SAL
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1260

865 F.2d 1260 (4th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,

v.

Francisco C. ASTORGA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

John Joseph ROUSH, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Luis TANG-FORTALECHE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Lucas Gerrardo Caballero SALINAS, a/k/a Robertito, a/k/a Robert, a/k/a Roberto, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Phillip Salvador MANTECON, a/k/a Phillip Salvador Mantecon, Jr., Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellant,

v.

Lucas Gerrardo Caballero SALINAS a/k/a Robertito, a/k/a Robert, a/k/a Roberto, Defendant-Appellee.

UNITED STATES of America, Plaintiff-Appellee,

v.

Bernardo Segundo CALLEJA a/k/a Beni, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Carlos Rafael CALLEJA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Felipe Salvador MANTECON, a/k/a Phillip Salvador Mantecon, Sr. Defendant-Appellant.

Nos. 87-5018 to 87-5020, 87-5023, 87-5024, 87-5037, 87-5042, 87-5043 and 87-5091.

United States Court of Appeals, Fourth Circuit

January 6, 1989

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA4 Rule 36 regarding use of unpublished opinions)

Argued: June 6, 1988.

W.D.Va.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED WITH INSTRUCTIONS.

Appeal from the United States District Court for the Western District of Virginia, at Roanoke. James C. Turk, Chief District Judge. (CR-86-28)

Stephen H. Sachs (Richard J. Oparil, Wilmer, Cutler & Pickering, on brief); Gary L. Lumsden; Vincent R. Alto; Harry F. Hambrick, Jr.; John Gregory, Jr.; Stephen A. LeClair (Alvin E. Entin, Entin, Schwartz, Barbakoff & Schwartz on brief); Jonathan M. Apgar (Willis, Damico & Apgar on brief); Loren H. Cohen (William R. Tunkey, Benjamin S. Waxman, Weiner, Robbins, Tunkey & Ross, P.A. on brief), for appellants.

Richard Wilcox Pierce, Assistant United States Attorney (John P. Alderman, United States Attorney, on brief), for appellee.

Before DONALD RUSSELL, ERVIN and CHAPMAN, Circuit Judges.

CHAPMAN, Circuit Judge:

These appeals present a complex factual picture because there are presently eight appellants ¹ who were charged with violating a number of federal drug statutes. Some of the defendants were charged and have been convicted of violating more than one such statute, and each appellant was charged and convicted under Count One of the superseding indictment of conspiring to import into the United States more than one kilogram of cocaine, a Schedule II narcotic controlled substance, in violation of 21 U.S.C. § 952(a). Most of the appellants challenge the sufficiency of the evidence to convict them, and a majority of the appellants claim that a prejudicial atmosphere pervaded the trial because of the massive media coverage, both before and during the trial, and the extensive security measures taken during the trial. Other appellants have presented issues that relate only to them individually.

The United States has filed a cross appeal claiming error by the trial judge in granting a judgment of acquittal to Lucas Gerrardo Caballero-Salinas (hereinafter "Caballero") following his conviction under Count Fourteen of engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848.

After a searching review of the record and the law, we find that the trial judge erred when he granted Caballero's motion for acquittal as to Count Fourteen. We affirm all of the remaining convictions. The sentences of Bernardo Calleja and Carlos Calleja on the conspiracies alleged in Counts One and Seven are set aside under our decision in United States v. Porter, 821 F.2d 968 (4th Cir.1987), because each Calleja was convicted of a Continuing Criminal Enterprise offense, and as we stated in Porter: "Congress did not intend that an individual be punished under both § 846 (conspiracy) and § 848 (Continuing Criminal Enterprise)." Id. at 978.

The trial of this case began on November 10, 1986, and on December 12, 1986, the jury returned verdicts as follows:

Miguel Alvarez: Guilty as to--

Count Seven--conspiracy to distribute more than one kilogram of cocaine in violation of 21 U.S.C. §§ 841 and 846.

Count Thirteen--possession with intent to distribute approximately 50 kilograms of cocaine in violation of 21 U.S.C. § 841(a).

Francisco C. Astorga: Guilty as to--

Count One--conspiracy to import into the United States more than one kilogram of cocaine in violation of 21 U.S.C. §§ 952(a) and 963.

Lucas Gerrardo Caballero Salinas: Guilty as to--

Count One--conspiracy to import more than one kilogram of cocaine into the United States in violation of 21 U.S.C. §§ 952(a) and 963.

Count Seven--conspiracy to possess with intent to distribute more than one kilogram of cocaine in violation of 21 U.S.C. §§ 841 and 846.

Count Eight--distribution of approximately 342 kilograms of cocaine in violation of 21 U.S.C. § 959(a).

Count Nine--importing approximately 318 kilograms of cocaine into the Western District of Virginia in violation of 21 U.S.C. § 952(c).

Count Fourteen--engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848.

Bernardo Segundo Calleja: Guilty as to--

Count One--conspiracy to import more than one kilogram of cocaine in violation of 21 U.S.C. § 952(a) and 963.

Count Three--interstate travel to carry on a business enterprise involving cocaine in violation of 18 U.S.C. § 1952.

Count Five--use of a communication facility to facilitate the importation of cocaine in violation of 21 U.S.C. § 843.

Count Six--another use of communication facility charge.

Count Seven--conspiracy to possess with intent to distribute more than one kilogram of cocaine in violation of 21 U.S.C. §§ 841 and 846.

Count Nine--importing into the Western District of Virginia approximately 318 kilograms of cocaine in violation of 21 U.S.C. § 952(c).

Count Eleven--interstate travel to promote a business enterprise involving cocaine in violation of 18 U.S.C. § 1952.

Count Twelve--another interstate travel count.

Count Thirteen--possession with intent to distribute approximately 50 kilograms of cocaine in violation of 21 U.S.C. § 841(a).

Count Fifteen--engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848.

Carlos Rafael Calleja: Guilty as to--

Count One--conspiracy to import into the United States more than one kilogram of cocaine in violation of 21 U.S.C. §§ 952(a) and 963.

Count Three--interstate travel to promote a business enterprise involving cocaine in violation of 18 U.S.C. § 1952.

Count Seven--conspiracy to possess with intent to distribute more than one kilogram of cocaine in violation of 21 U.S.C. §§ 841 and 846.

Count Nine--importation into the Western District of Virginia approximately 318 kilograms of cocaine in violation of 18 U.S.C. § 1952.

Count Thirteen--possession with intent to distribute approximately 50 kilograms of cocaine in violation of 21 U.S.C. § 841(a)

Count Sixteen--engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848.

Felipe Salvador Mantecon: Guilty as to--

Count One--conspiracy to import more than one kilogram of cocaine in violation of 21 U.S.C. § 952(a) and 963.

Count Twelve--interstate travel to promote a business enterprise involving cocaine in violation of 18 U.S.C. § 1952.

Count Thirteen--possession with intent to distribute approximately 50 kilograms of cocaine in violation of 21 U.S.C. § 841(a).

Phillip Salvador Mantecon: Guilty as to--

Count One--conspiracy to import more than one kilogram of cocaine in violation of 21 U.S.C. § 952(a) and 963.

Count Three--interstate travel to promote a business enterprise involving cocaine in violation of 18 U.S.C. § 1952.

Count Seven--conspiracy to possess with intent to distribute more than one kilogram of cocaine in violation of 21 U.S.C. §§ 841 and 846.

John Joseph Roush: Guilty as to--

Count One--conspiracy to import more than one kilogram of cocaine in violation of 21 U.S.C. §§ 952(a) and 963.

Luis Tang-Fortaleche: Guilty as to--

Count One--conspiracy to import more than one kilogram of cocaine in violation of 21 U.S.C. §§ 952(a) and 963.

Count Nine--importation into the Western District of Virginia approximately 318 kilograms of cocaine in violation of 21 U.S.C. § 952(c).

Carl Allen Warmack: Guilty as to--

Counts One, Two, Seven and Ten--these are being handled in a separate appeal.

The Drug Enforcement Administration successfully infiltrated two large cocaine organizations through the efforts of Donald O. Lincoln, an experienced agent and an able pilot. He worked his way into a position in which he would provide air transportation from Bolivia and Panama to Virginia for large quantities of cocaine originated by Roberto Suarez in Bolivia. The drugs were to be distributed by Bernardo Calleja and Carlos Calleja in the United States.

Lincoln was officially stationed in Richmond, Virginia, and he wanted the final destination of the drugs to be nearby. The Callejas liked the Virginia delivery, because most of the cocaine was destined for New York City. During the course of his investigation and contact with the appellants, Lincoln recorded many telephone conversations and filmed by video camera meetings in a motel room in Panama and in a farmhouse in Bath County, Virginia. Lincoln was the chief witness for the government, but there were other agents involved in the undercover operation.

Carl Warmack introduced Bernardo Calleja and Carlos Calleja to Donald Lincoln, who was then posing as the president of an air service that could fly cocaine from Colombia or Bolivia through Panama and into the United...