U.S. v. Herrera-Zuleta

• Decision Date: 16 July 1991
• Docket Number: HERRERA-ZULET,D,No. 89-10389,89-10389
• Citation: 937 F.2d 614
• Parties: Unpublished Disposition NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Benjaminefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 614

937 F.2d 614

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee, v. Benjamin HERRERA-ZULETA, Defendant-Appellant.

No. 89-10389.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 8, 1990.

Decided July 16, 1991.

Before ALDISERT ^*, ALARCON and BRUNETTI, Circuit Judges.

MEMORANDUM ^**

Benjamin Herrera-Zuleta was convicted of conspiracy and importation of more than one kilogram of cocaine under U.S.C. Secs. 952(a), 960(a)(1), 960(b)(1)(B), and 963. The district court denied his Fed.R.Crim.P. 29 motion for acquittal. Herrera was sentenced to concurrent 40 year terms on each of the two counts in the indictment. Defendant appeals from the judgment of conviction and sentence.

I. FACTUAL BACKGROUND

In late 1984 and early 1985 the DEA organized a sting operation involving importation of cocaine from Colombia. In January 1985 DEA agents (including two drug-importers-turned-informants) flew to South Caicos Island to discuss the sale of an airplane with Leocadio Moreno. The plane was to be used to import a large amount of cocaine from Bolivia into the United States.

Moreno eventually purchased a aircraft from one of the government informants, Barry Seal, but the first three attempts to pick up the drugs in Bolivia were unsuccessful. Along with aircraft mechanical difficulties, a number of persons, both at the South Caicos airport and at a refueling point in Colombia, demanded payment in order for the plane to continue.

Eventually it was clear that an additional $40,000 was required to continue the effort. The government agents flew Moreno to south Florida where, he indicated, he could secure sufficient cash to carry out the plan. A January 10, 1990, meeting at the Opa Locka airport in Miami was set up to discuss the additional funds.

DEA agent Robert Joura, who apparently directed the operation, asked agent Victor Olivieri to attend the meeting to act as translator. After Olivieri arrived Moreno informed them that he would have to call his "partner" to get the $40,000 needed to continue the operation. Moreno called his own apartment in Miami and told the answering party that he needed $40,000 and "to bring the money over or to get the money ready."

Forty-five minutes later, after the group was joined by Benjamin Herrera and Francisco Montoya, a meeting was held in a conference room at the airport. Agent Olivieri testified at length as to the conversation (primarily in Spanish) that occurred. Moreno explained to Herrera that $40,000 was needed and Herrera responded that "he could come up with the money, with the forty thousand ..., but he ... needed--he had like twenty thousand; he needed a little more time to get the money."

Government informant Seal explained why the money was needed and said that he was concerned because on a former trip to Colombia William Bottoms (the intended pilot in this venture and a government informant) had been held at gun point by Colombian army members demanding bribes. Herrera responded that the Colombians should be no problem; "that the people down in Colombia had been paid off, that he had taken care of the problem himself." The defendant also stated that "he was going to send a pilot to guide Mr. Bottoms to the landing strip in Bolivia." Herrera continued that "he needed somebody to go to Bolivia to--for the smooth transaction of the cocaine down there. He needed one of his socios ... to go down with him--or to go down with Mr. Bottoms."

Finally, Olivieri testified that "Herrera asked if the cocaine could be delivered to either--somewhere on the West Coast rather than South Florida, ... Mr. Seal told him that, yes, he could do it to the West Coast. And Mr. Herrera said either Los Angeles or Las Vegas would be--it would be okay, and then he agreed ... that Las Vegas would be the place where he would deliver it."

The following day after a series of telephone conversations between Olivieri and Moreno, a meeting was held at an area restaurant. At the meeting Moreno represented that he had thirty-six of the required forty thousand dollars, but apparently the money was not turned over to the agents. ¹

On January 15 agents Seal, Joura and Olivieri flew to Tyler, Texas, to meet a plane carrying cocaine from Bolivia. The plane landed as scheduled, refueled and flew to Las Vegas for off-loading of the drugs. The following day a number of conspirators were arrested in Las Vegas. Herrera was apprehended in Florida in December, 1987.

II. SUFFICIENCY OF THE EVIDENCE

Appellant argues that the evidence presented to the jury was insufficient to convict him of conspiracy to distribute, and of distribution of at least a kilogram of cocaine. We consider the sufficiency of the evidence to determine whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). The evidence and all reasonable inferences to be drawn therefrom are viewed in the light most favorable to the government. United States v. Adler, 879 F.2d 473, 495 (9th Cir.1986) (citation omitted).

a. Conspiracy Count

To establish that appellant took part in a conspiracy the government must prove the following beyond a reasonable doubt: (1) the existence of an agreement to accomplish an illegal objective; (2) one or more acts by the defendant connecting him to the agreement and in furtherance of the illegal purpose; and (3) that appellant possessed the requisite intent necessary to commit the underlying substantive offense. United States v. Penagos, 823 F.2d 346, 348 (9th Cir.1987).

There is no doubt that a conspiracy to Once a conspiracy exists, evidence establishing beyond a reasonable doubt defendant's connection with the conspiracy, even though the connection is slight, is sufficient to convict defendant of knowing participation in the conspiracy. Penagos, 823 F.2d at 348.

import cocaine existed. The only issue is whether there was sufficient evidence to prove beyond a reasonable doubt that Herrera was member of the conspiracy. In Penagos, we held that

There is no question the jury reasonably could have connected Herrera to the conspiracy based on the evidence offered at trial.

In the light most favorable to the government, direct and circumstantial evidence demonstrated that Herrera: (a) was contacted by Moreno to provide cash for an ongoing attempt to import a large amount of cocaine from Bolivia; (b) stated at the Opa Locka meeting that given time he could come up with the forty thousand dollars to complete the financing; (c) stated that he had personally taken care of problems that were experienced earlier with the Colombian army; (d) chose the eventual off-loading site for the imported cocaine; and (e) was the source of funds delivered by Moreno to DEA agents after the Opa Locka meeting.

Appellant's assertion that this evidence was insufficient to establish Herrera's connection to the conspiracy is frivolous. Defendant relies on United States v. Esparza, 876 F.2d 1390 (9th Cir.1989) (mere presence at the scene of a crime is not sufficient to connect a defendant to a conspiracy), and United States v. Ramirez, 880 F.2d 236 (9th Cir.1989) (same). Herrera's reliance on these cases is misplaced. In both cases, the government failed to demonstrate any connection between an ongoing conspiracy and the defendant other than the defendant's presence at the scene of illegal activity.

There can be no assertion here that Herrera was "merely present" at the Opa Locka meeting: he asserted that he would provide up to $40,000; he directed the final destination of the cocaine; he claimed to have cleared up difficulties with the Colombian army; and there was strong circumstantial evidence that he was the source of funds eventually provided to government agents.

Thus, despite appellant's assertions, there was ample direct and circumstantial evidence of Herrera's knowledge of and participation in the conspiracy which ended with the arrival of eighty-six kilos of cocaine in Las Vegas. It follows also that given the evidence of Herrera's connection to the conspiracy, the jury could rationally find beyond a reasonable doubt that appellant was guilty of the underlying substantive offense of importation of at least a kilogram of cocaine.

III. ADMISSION OF EVIDENCE

a. Hearsay Testimony

Appellant next asserts that the trial court improperly allowed Agent Joura to testify regarding statements (i.e., translations) made by Agent Olivieri at the Opa Locka meeting. The trial judge earlier had excluded this kind of testimony. Later, Joura testified in rebuttal and over defense objections, that the court permitted testimony as to the conversation at the meeting.

We review a district court's decision to admit testimony over a hearsay objection for abuse of discretion. United States v. Kirk, 844 F.2d 660, 663 (9th Cir.1988). Herrera argues that by permitting Joura to testify as to statements made by Olivieri about statements made by Herrera, Olivieri's testimony was strengthened. And if the statements were impermissibly admitted, they were sufficiently prejudicial to amount to an abuse of discretion.

The trial court permitted this testimony by Joura, as to statements made by agent Olivieri at the Opa Locka meeting, as evidence of prior consistent statements under Fed.R.Evid. 801(d)(1)(B). ² Because the defense challenged Agent Olivieri's veracity and his recall, the district court allowed this testimony by Agent Joura to rebut these charges rather than to buttress the substantive testimony of Agent Olivieri regarding Herrera's statements.

Rule 802(d)(1) was intended to permit testimony by a witness regarding prior statements by a declarant that are...