United States v. Flores, Docket Nos. 17-4039(L)

• Citation: 945 F.3d 687
• Decision Date: 20 December 2019
• Docket Number: Docket Nos. 17-4039(L),August Term, 2018,17-4141(Con)
• Parties: UNITED STATES of America, Appellee, v. Efrain Antonio Campo FLORES and Franqui Francisco Flores De Freitas, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

945 F.3d 687

UNITED STATES of America, Appellee,

v.Efrain Antonio Campo FLORES and Franqui Francisco Flores De Freitas, Defendants-Appellants.^*

Docket Nos. 17-4039(L)

17-4141(Con)

August Term, 2018

United States Court of Appeals, Second Circuit.

Argued: January 24, 2019

Decided: December 20, 2019

EMIL J. BOVE III, Assistant United States Attorney, New York, New York (Geoffrey S. Berman, United States Attorney for the Southern District of New York, Brendan F. Quigley, Won S. Shin, Assistant United States Attorneys, New York, New York, on the brief), for Appellee.

RANDALL W. JACKSON, New York, New York (John T. Zach, Boies Schiller Flexner, New York, New York, on the brief), for Defendant-Appellant Efrain Antonio Campo Flores.

MICHAEL A. LEVY, New York, New York (David M. Rody, Michael D. Mann, Elizabeth A. Espinosa, Melanie Berdecia, Sidley Austin, New York, New York, on the brief), for Defendant-Appellant Franqui Francisco Flores de Freitas.

Before: KEARSE, JACOBS, and SACK, Circuit Judges.

KEARSE, Circuit Judge:

Defendants Efrain Antonio Campo Flores ("Campo") and Franqui Francisco Flores de Freitas ("Flores") appeal from judgments entered in the United States District Court for the Southern District of New York following a jury trial before Paul A. Crotty, Judge , convicting them on one count of conspiracy to import five or more kilograms of cocaine into the United States, see 21 U.S.C. §§ 963, 959(c), 960(b)(1)(B)(ii), and sentencing each principally to 216 months' imprisonment and a $50,000 fine. On appeal, defendants contend principally (a) that the trial evidence was insufficient to establish their knowledge that the cocaine in question was to be imported into the United States, and that the court erred by instructing the jury that that knowledge element could be satisfied on the basis of conscious avoidance; (b) that, with regard to their defense of entrapment, the government failed to meet its burden to prove disposition, and (c) that the court abused its discretion in various evidentiary rulings, including the admission of a lay opinion identifying a substance as cocaine, the admission of government agents' interpretations of certain statements made by defendants, and the admission, during a witness's direct examination, of his written notes and reports as prior consistent statements as to defendants' postarrest statements. Defendants also challenge their sentences, principally contending that an enhancement under Sentencing Guidelines ("Guidelines") § 2D1.1(b)(3)(A), applicable when a private aircraft "was used" to import narcotics, was error given that their conspiracy was thwarted prior to the transport of any drugs. For the reasons that follow, we see no basis for reversal.

I. BACKGROUND

According to the evidence at the nine-day trial in November 2016, taken in the light most favorable to the government, the events at issue in this prosecution--all of which took place in 2015--had their origin in the efforts of Campo and Flores, nephews of Cilia Flores, the First Lady of Venezuela, to obtain large quantities of cocaine from a Colombian supplier, and then to ship the cocaine from Venezuela to drug traffickers in Honduras. According to Campo, who from an early age was raised by Cilia Flores and sometimes referred to her as his mother, defendants sought to raise $20 million in drug proceeds in order to fund Cilia Flores's 2015 campaign for a position in the Venezuelan National Assembly. The United States Drug Enforcement Administration ("DEA") received word of their efforts and infiltrated defendants' discussions.

A. The Trial Evidence

At trial, DEA Special Agent Daniel Mahoney gave general testimony as an expert on "drug trafficking routes, particularly the routes used to move cocaine from South and Latin America, the ways, manor [sic ], means and method of trafficking along those routes and the prices of cocaine along those routes." (Trial Transcript ("Tr.") at 542-43.) He testified that approximately 90% of the cocaine sent from South America into Central America is destined for the United States, and that it is generally known among traffickers in the region that cocaine sent out of South America and into Central America is headed to the United States.

The government's evidence with respect to Campo and Flores themselves was presented principally through (A) the testimony of DEA Special Agent Sandalio Gonzalez, together with his notes and reports as to defendants' statements following their arrests; (B) the testimony of two witnesses--each a confidential source (or "CS")--whose identities were protected by the use of the following pseudonyms: "Juan Gomez" ("Gomez"), a DEA confidential source, and "Jose Santos-Pena" ("Santos-Pena"), a former DEA informant; and (C) video and audio recordings of meetings attended by Campo and/or Flores in Venezuela, Honduras, and Haiti, electronic communications between Campo and Santos-Pena, and electronic communications involving one or both of the defendants and other drug traffickers, obtained from cellphones seized from defendants incident to their arrests.

1. The DEA Learns of Campo and Flores, and Sends in the Spies

Gonzalez, who coordinated much of the operation that led to defendants' arrests, testified that the DEA's investigation of Campo and Flores began on October 3, 2015, when Gonzalez was contacted by Carlos Amilcar Leva Cabrera, a Honduras-based drug trafficker known as El Sentado (or "Sentado"). Sentado was being prosecuted on federal narcotics charges in the Southern District of New York and had begun providing assistance to the DEA in an effort to obtain a cooperation agreement. Prior to Sentado's contacting Gonzalez, the DEA had not been investigating Campo or Flores and did not know who they were. (See Tr. 172.)

Based on what Sentado told Gonzalez, Gonzalez instructed him to record a meeting he was scheduled to have that day in Honduras with Campo and Flores-using his cellphone, as the DEA would be unable to get unobtrusive recording equipment to him in time. Gonzalez also instructed Sentado to try to contact another DEA cooperating person who was in Honduras, in order to provide a second witness to the meeting with Campo and Flores; but Sentado was not able to get in touch with that person.

Sentado attended the meeting but did not record it. He later sent the DEA a photograph of himself with, inter alios , Campo, Flores, and a Honduras-based Colombian drug trafficker, Cesar Orlando Daza Cardona ("Daza"), also known as El Flaco ("Flaco" (or "Flacco")), who had never provided assistance to the DEA. Flaco was the person who had introduced Campo and Flores to Sentado in their quest for cocaine distributors. (See Tr. 162-63.)

After hearing from Sentado, Gonzalez enlisted Santos-Pena, a former member of the Sinaloa drug cartel and long-time DEA confidential source, to meet with Campo and Flores in Venezuela posing as a Mexican drug trafficking associate of Sentado. Santos-Pena went to Venezuela in late October, accompanied by his son (who was given the protective pseudonym "Jose Santos-Hernandez" ("Santos-Hernandez")), a CS who also had previously worked with Gonzalez on investigations. Father and son had also jointly provided assistance to other DEA offices, as well as to various local law enforcement departments. For their trip to Venezuela they were equipped with covert recording devices to document their meetings with Campo and Flores.

2. Conversations Among Campo, Flores, and the DEA Confidential Sources

a. Defendants' October 23, 26, and 27 Meetings With Santos-Pena

Santos-Pena and Santos-Hernandez met with Campo and Flores on October 23, 26, and 27 and made recordings of their three business meetings, which were given to the DEA. At trial, the government played portions of audio recordings and of video recordings with synched English subtitles, and introduced translations and transcriptions (with "..." denoting a pause, and the court explaining that "UI stand[s] for unintelligible" (Tr. 614-15)). The recordings and Santos-Pena's testimony about these meetings included the following.

In the October 23 meeting, Campo said that defendants had gone to Honduras to meet with Sentado some weeks earlier and had wanted " ‘to do something as soon as possible’ " (Tr. 612 (quoting (Government Exhibit ("GX") 203-T at 4)))--which Santos-Pena testified he understood to mean that Campo wanted to "send a delivery of cocaine to Honduras" (Tr. 612)--but Campo complained about difficulties in reaching Sentado because he occasionally "disappeared" (GX 203-T at 5); Campo said "you can't disappear so long in this business" (id .). Santos-Pena explained to Campo and Flores that Sentado was "extremely cautious" and said "I'm the person who buys everything from him... and I am the person who is responsible for taking everything to the United States." (GX 203-T at 6.)

Campo explained defendants' need for speed, stating that "my mom is running for the election and I need ... twenty million dollars," and "we need it by December." (GX 203-T at 11.) Santos-Pena responded that he had available "money right now to put up and hand to you." (Id .) Campo said that because of Sentado's failure to attend "meeting[s] over there, I started to look around elsewhere " (GX 203-T at 10 (emphasis added)), which Santos-Pena testified he understood to mean that Campo "was doing other drug deals with other people," i.e. , other than Sentado and Santos-Pena (Tr. 615).

At that October 23 meeting, part of the discussion concerned how the cocaine would be transported. Santos-Pena explained that portion of the recording as follows:

Q. Sir, do you see where you say, "Do you want [me to send] a car for you or will you send a car?"

A. Yes, sir.

Q. What do you mean by "a car" there?

A. An airplane.

Q. To do what?

A. To send the drugs from Venezuela to Honduras.

Q. And do you see ... where defendant Campo says, "I told him I may have the possibility of providing the car?"

A. Yes, sir.

Q. Who do you understand defendant Campo

...