U.S. v. Restrepo
| Decision Date | 10 April 1991 |
| Docket Number | 90-50093 and 90-50094,Nos. 90-50092,s. 90-50092 |
| Citation | 930 F.2d 705 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Mauro RESTREPO, Maureen McGinley, Manuel Lupio, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
J. Williams Beard, Jr., San Diego, Cal., for defendant-appellant Restrepo.
Shawn M. Hayes, Asst. Federal Public Defender, San Diego, Cal., for defendant-appellant McGinley.
Jan Joseph Bejar, San Diego, Cal., for defendant-appellant Lupio.
John R. Kraemer, Roger W. Haines, Jr., Asst. U.S. Attys., San Diego, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of California.
Before ALARCON, NORRIS and WIGGINS, Circuit Judges.
Mauro Restrepo, Manuel Lupio, and Maureen McGinley were convicted of conspiracy to distribute, and possession of, eight kilograms of cocaine. Restrepo and Lupio seek reversal on the grounds that the evidence is insufficient to support the judgment of conviction. Restrepo also contends that he was incorrectly denied a two-point reduction for acceptance of responsibility under the Sentencing Guidelines. Lupio alleges that the district court erred in denying his motion for severance. McGinley claims that the district court erred in refusing to dismiss the indictment because of outrageous government conduct. We disagree with each of these contentions and affirm.
John Arman and Maureen McGinley first met in 1979. McGinley was married at the time. McGinley's husband and Arman jointly participated in drug transactions. During this period of time, McGinley and Arman both used cocaine.
In 1983, McGinley obtained a divorce. She earned a college degree while working full time. She also stopped using cocaine.
In 1984, Arman contacted McGinley after not seeing her for two years. They had a brief affair. This relationship was terminated when Arman went to Mexico to avoid prosecution on a federal drug trafficking charge.
Arman returned to the United States in 1988, after serving a term of imprisonment in Mexico. Arman was arrested on a fugitive warrant in April 1988. At the time of his arrest, Arman was in possession of seven bags of marijuana and one ounce of cocaine. Following his arrest, Arman's attorney began efforts to negotiate an agreement that would dispose of charges that had been filed in federal and state courts. Arman sought dismissal or reduction of the charges in exchange for his cooperation with the Government. In April, 1988, Arman testified before a grand jury, as a government witness as part of a plea bargain that fell through.
In December of 1988, McGinley contacted Arman. Arman took her to a friend's house where cocaine was being consumed. Arman and McGinley each used cocaine. That evening they engaged in sexual activity. After approximately a month, McGinley and Arman moved to San Diego. McGinley met the woman with whom Arman was living in January or February 1989. Thereafter McGinley and Arman ceased their sexual relationship. Arman and McGinley did not terminate their friendship.
In January 1989, Arman asked McGinley if she knew anyone who could supply large quantities of cocaine. She said she might be able to contact one of her ex-husband's suppliers. On or around January 17, 1989, Arman asked McGinley to bring him a kilo of cocaine to sell. She did so. The Government was unaware that Arman was trafficking in narcotics when this transaction occurred.
On March 7, 1989, Arman orally agreed to help agents of the Drug Enforcement Administration (DEA) gather evidence leading to the arrest of "Harold," a major drug supplier. Arman set up a meeting between McGinley and Special Agents Calise Couchman and Charles Jones of the DEA. McGinley met with Special Agent Jones or Special Agent Couchman five times and had at least six telephone conversations with them between March 7 and June 6, to discuss her sources and the amount of cocaine they wished to purchase. McGinley thought the officers were drug traffickers. At their first meeting, on March 8, 1988, McGinley sold Special Agent Couchman an ounce of cocaine for $1,000.
On June 6, 1989, McGinley introduced Special Agents Couchman and Jones to Mauro Restrepo as drug traffickers. Restrepo told Special Agents Couchman and Jones that he was "Harold's" partner. Restrepo told the officers he could supply large quantities of various grades of cocaine to them. He quoted a price of $15,500 per kilogram, in 25 to 30 kilogram lots. McGinley participated in the meeting. As a sign of their good faith, Special Agents Couchman and Jones showed Restrepo and McGinley a briefcase containing $180,000 in cash.
On June 7, 1989, and June 9, 1989, McGinley spoke on the telephone with Special Agent Jones concerning the proposed narcotics transaction. On June 10, 1989, she and Arman met with Special Agent Jones in San Clemente. McGinley stated that ten kilograms of cocaine had been shipped from Los Angeles. The shipment did not arrive.
On June 27, 1989, McGinley phoned Special Agent Jones and said that eight kilograms would be available the next day. On June 28, 1989, Special Agent Charles Teal observed Arman, McGinley, Restrepo, and Lupio meet for breakfast at a Denny's restaurant. They left at approximately 10:00 a.m. Restrepo drove a brown Oldsmobile. Lupio drove a white pick-up truck.
At about 12:30 p.m., on the same date, McGinley met with Special Agents Jones and Couchman. She told them that they could purchase eight kilograms of cocaine at the Fish Market restaurant in one hour. She also informed them that Restrepo would be nearby and would deliver another twenty kilograms within hours of the successful transaction.
At approximately 1:40 P.M., Lupio drove the brown Oldsmobile (in which Restrepo had left Denny's restaurant) into the Fish Market restaurant parking lot, where Special Agents Jones and Couchman were waiting. Arman was with Lupio. Special Agent Jones walked to the car. Lupio immediately mentioned "dinero." Special Agent Jones said he wanted to see the packages. Lupio told Special Agent Jones to sit in the front seat. When Special Agent Jones did so, Lupio started the car and pounded on a spot on the front door. Two secret compartments in the rear doors then opened, revealing eight kilograms of cocaine. Special Agent Jones testified that he looked at Lupio after the compartments opened. Lupio smiled and "looked pleased." Special Agent Jones unwrapped one of the packages. It appeared to contain cocaine. Special Agent Jones gave a prearranged signal. Lupio was then arrested by other law enforcement personnel.
Restrepo and McGinley were across the street at the time of the arrest. They were also arrested, after a brief and futile attempt to escape.
Restrepo argues that there is insufficient evidence that he agreed to distribute cocaine. The standard of review for sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Government, a rational trier of fact could have found the elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Dorotich, 900 F.2d 192 (9th Cir.1989).
Restrepo argues that because he speaks only Spanish, there is no evidence in the record that he understood the June 6, 1989, conversation concerning the sale of cocaine to the agents. Restrepo also asserts that since there is no proof in the record that he received any money from the Special Agents or that he was present when the cocaine was delivered to them, the evidence is insufficient to demonstrate that he agreed to sell cocaine or was a member of the conspiracy. Restrepo maintains that the evidence produced by the Government shows mere association with Arman and McGinley. He asserts that, at most, the record demonstrates that he acquiesced in their illegal activity. We disagree.
[I]t is clear that mere association with members of a conspiracy, or simple knowledge, approval, or acquiescence in the object or purpose of the conspiracy, without intention and agreement to accomplish a specific illegal objective, is not sufficient to make one a conspirator.
United States v. Melchor-Lopez, 627 F.2d 886, 891 (9th Cir.1980).
The record shows more than mere association and acquiescence. Restrepo was present at the June 6, 1989, meeting at which the arrangements were made to deliver cocaine to Special Agents Couchman and Jones. He told Special Agent Jones that he was "Harold's" partner and could provide significant quantities of cocaine. During these negotiations Restrepo quoted the price of cocaine and discussed the quantity he could deliver. Restrepo speculates that Arman could have created this conversation out of whole cloth because he "translated" the negotiations from Spanish to English. This contention finds no support in the record. The Special Agents testified regarding what Restrepo "told" them at their meeting. They testified that he "talked" with them. There is nothing in the record to support the contention that Arman acted as an interpretor for Restrepo. This same argument was presented to the jury by Restrepo's trial counsel. The jury rejected it.
Restrepo left the breakfast meeting on June 25 in the car in which the cocaine was later delivered. Restrepo watched the transaction from across the street and attempted to escape from the DEA agents.
The prosecution is not required to show that a conspiracy agreement was explicit; the agreement may be inferred from the facts and circumstances of the case. United States v. Hernandez, 876 F.2d 774, 777 (9th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 179, 107 L.Ed.2d 135 (1989). Circumstantial evidence, and proper inferences drawn therefrom, may sustain a conviction. United States v....
To continue reading
Request your trial
-
US v. Burnside, No. 89 CR 909.
...opinion forecloses consideration by the court of dismissing the indictment for outrageous government conduct. See United States v. Restrepo, 930 F.2d 705, 712 (9th Cir.1991), United States v. Barrera-Moreno, 951 F.2d 1089 (9th Id. (footnote omitted). Although the acts of prosecutorial misco......
-
U.S. v. Manarite
...Because she failed to renew her motion at the close of the evidence, however, she has waived the issue on appeal. United States v. Restrepo, 930 F.2d 705, 711 (9th Cir.1991); United States v. Smith, 893 F.2d 1573, 1581 (9th G. Sentencing 1. Failure to state reasons. The trial court did not ......
-
U.S. v. Innie
...find the guns and the drugs. His admissions were made before the government had proven its case at trial. Cf. United States v. Restrepo, 930 F.2d 705, 710 (9th Cir.1991); see also U.S.S.G. § 3E1.1, comment. (n. 1(g)) (the timeliness of admissions is relevant to acceptance of At sentencing, ......
-
U.S. v. Matta-Ballesteros
...1044 (9th Cir.1985). We review dismissal based on the exercise of supervisory powers for an abuse of discretion. United States v. Restrepo, 930 F.2d 705, 712 (9th Cir.1991). The circumstances surrounding Matta-Ballesteros's abduction, while disturbing to us and conduct we seek in no way to ......