U.S. v. Londono-Villa, LONDONO-VILL

• Citation: 930 F.2d 994
• Decision Date: 10 April 1991
• Docket Number: No. 298,D,LONDONO-VILL,298
• Parties: UNITED STATES of America, Appellee, v. Mauricioefendant-Appellant. ocket 90-1339.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 994

930 F.2d 994

UNITED STATES of America, Appellee, v. Mauricio LONDONO-VILLA, Defendant-Appellant.

No. 298, Docket 90-1339.

United States Court of Appeals, Second Circuit.

Argued Nov. 5, 1990.

Decided April 10, 1991.

McLaughlin, Circuit Judge, filed dissenting opinion.

Elizabeth Glazer, Asst. U.S. Atty., New York City (Otto G. Obermaier, U.S. Atty. for the Southern District of New York, Alan M. Cohen, Asst. U.S. Atty., New York City, on the brief), for appellee.

Richard M. Asche, New York City (Jack T. Litman, Russell M. Gioiella, Scott B. Tulman, Litman, Asche, Lupkin & Gioiella, New York City, on the brief), for defendant-appellant.

Before KEARSE, MAHONEY, and McLAUGHLIN, Circuit Judges.

KEARSE, Circuit Judge:

Defendant Mauricio Londono-Villa ("Londono") appeals from a judgment entered in the United States District Court for the Southern District of New York, following a jury trial before Peter K. Leisure, Judge, convicting him on one count of conspiring to import cocaine into the United States in violation of 21 U.S.C. Secs. 952(a), 960, and 963 (1988), and one count of aiding and abetting the importation of cocaine in violation of 21 U.S.C. Secs. 952(a) and 960, and 18 U.S.C. Sec. 2 (1988). On the aiding and abetting count, he was sentenced principally to 10 years' imprisonment, to be followed by five years of supervised release; on the conspiracy count, the court suspended the imposition of sentence and imposed a five-year term of probation, to run concurrently with the term of supervised release. On appeal, Londono contends chiefly that there was no evidence that he knew or intended the destination of the cocaine to be the United States, and that the district court erred in instructing the jury that it could find him guilty without finding that he had such knowledge or intent. For the reasons below, we agree and reverse the judgment of conviction.

I. BACKGROUND

The government's evidence at trial was presented principally through the testimony of Drug Enforcement Administration ("DEA") undercover agent Rene de la Cova and DEA confidential informant Frank Kelly. To the extent pertinent to Londono, the testimony was as follows.

In March and April 1987, several individuals, including codefendant Nelson Cuevas-Ramirez, unindicted coconspirator Alvaro Soler-Romero ("Soler"), and de la Cova, met several times in Panama City, Panama, to discuss a plan to transport 100-200 kilograms of cocaine from Colombia through Panama, to the United States. The plan called for Kelly, de la Cova's pilot, to fly from Panama to Colombia to pick up the shipment of cocaine from a small airstrip there; he would then return to Panama, and the cocaine would eventually be taken to the United States from Panama.

On April 11, Londono accompanied Soler to Panama for the last of these meetings. Londono was to fly with Kelly from Panama to Colombia the next morning to guide him to the Colombian airstrip, taking a roundabout route so that Kelly would not be able to locate it again. Londono was familiar with the location of the airstrip, which he had used many times, and he assured de la Cova that it was safe. When Kelly flew back to Panama, Londono was to remain in Colombia.

The flight to Colombia was delayed by mechanical problems, and de la Cova testified that Londono chafed at the delay, saying that he had undertaken this task as a favor and that he actually worked for an The cocaine was eventually transported to the United States. There was no testimony that Londono participated in any of the negotiations for the cocaine transaction and no testimony that the United States was mentioned in his presence. Although de la Cova testified that Panama is commonly used as a transshipment point for narcotics from Colombia to the United States, he also testified that Panama is used as a transshipment point for drugs to be sent to many other countries as well.

associate of one of the other conspirators. Londono and Kelly finally left for Colombia on April 13. When they arrived at the airstrip, two teenage boys delivered four burlap bags to the airstrip. Londono examined the bags to verify that they contained cocaine and noticed that there were only 110 kilograms instead of the expected 150. The boys explained to Londono that because the airplane had been delayed, they had already sent the rest off. Kelly tried to get Londono to return with him to Panama to explain the shortage, but Londono promised instead to telephone the other conspirators in Panama to alert them that Kelly was not responsible for the shortfall. Londono helped to load the cocaine into the airplane, and Kelly flew off to Panama, Londono remaining in Colombia.

At the close of the evidence, Londono asked the court to instruct the jury that, in order to establish his guilt of importing and conspiring to import the cocaine into the United States in violation of 21 U.S.C. Secs. 952, 960, and 963, the government was required to prove beyond a reasonable doubt that he knew or intended the destination of the cocaine to be the United States. The district court initially declined to include in its charge any instruction whatever with respect to a knowledge or intent requirement. Instead, it charged the jury, in pertinent part, as follows:

In order to find another person unlawfully imported cocaine into the United States, you must be satisfied beyond a reasonable doubt that the following elements have been satisfied.

First, that on or about the date set forth in the indictment, the defendant imported or caused to be imported into the United States a controlled substance. Second, that the imported substance at some point came into the Southern District of New York. Third, that the substance involved was approximately 111 kilograms of cocaine.

To import means to bring in or introduce an article. To find the defendant guilty ... you must find beyond a reasonable doubt that another person brought or caused to be brought into the United States approximately 111 kilograms of cocaine.

....

The second element of this offense requires that the imported substance actually came into the Southern District of New York at least for a time. Because the law provides that importation is a continuous offense you may find this location requirement satisfied as long as the substance came into the Southern District of New York.

During deliberations, the jury requested clarification as to whether the government was required to prove, for both the conspiracy charge and the aiding and abetting charge, that Londono knew the destination of the cocaine was the United States. The court responded by sending into the jury room the portions of the original instructions concerning conspiracy and aiding and abetting. The jury subsequently sent another note to the court, again asking whether a defendant had to know that cocaine was to be imported into the United States in order to be found guilty of aiding and abetting. In response, the court gave the jury a supplemental instruction stating that "the defendant need not have specific knowledge that the cocaine was to be imported into the United States." The jury thereafter found Londono guilty on both counts.

Following the verdict, Londono moved pursuant to Rules 29(c) and 33 of the Federal Rules of Criminal Procedure for a judgment of acquittal or a new trial, renewing his contention that the government was Londono was sentenced as indicated above, and this appeal followed.

                required to prove beyond a reasonable doubt that he knew or intended that the United States was to be the destination of the drugs, and arguing that there was no such proof.  The district court denied the motion in an opinion reported at 735 F.Supp. 543 (1990), holding that the reference to the United States in Sec. 952 is merely jurisdictional language, and that "whether or not read in light of Sec. 960, [it] does not require the government to prove that the defendant specifically intended the controlled substance to be imported into the United States."    735 F.Supp. at 546
                

II. DISCUSSION

On appeal, Londono pursues his contention that in order to convict a defendant of importation of narcotics under 21 U.S.C. Secs. 952 and 960, or conspiracy to import narcotics under 21 U.S.C. Sec. 963, the government must prove beyond a reasonable doubt that the defendant knew or intended that the narcotics would be imported into the United States. He argues that he is entitled to a dismissal of the indictment because the government's evidence was insufficient to prove that element, or at least to a new trial because the trial court's instructions were erroneous. We agree that Londono's conviction must be reversed and the indictment dismissed.

A. The Offenses of Importation and Conspiracy To Import

Section 952 provides that, except to the extent that the Attorney General of the United States may permit for medical, scientific, or other legitimate purposes, "[i]t shall be unlawful ... to import into the United States from any place outside thereof, any controlled substance." 21 U.S.C. Sec. 952(a). The term "import" is defined as "any bringing in or introduction of [an] article into any area (whether or not such bringing in or introduction constitutes an importation within the meaning of the tariff laws of the United States)." 21 U.S.C. Sec. 951(a)(1) (1988). Section 960(a) provides, in pertinent part, that

[a]ny person who--

(1) contrary to section 952 ... of this title, knowingly or intentionally imports ... a controlled substance,

. . . . .

shall be punished as provided in subsection (b) of this section.

21 U.S.C. Sec. 960(a)(1). Section 960(b) sets out a range of penalties, varying with the nature and quantity of the drugs, for "a violation of subsection (a) of this section."

Section 952(a) itself contains no penalty provision; the only penalty for conduct within the purview of that section is the penalty provided in Sec. 960(b) for violation of Sec. 960(a). Section 960(b)...