U.S. v. Rodriguez Cortes
| Citation | 949 F.2d 532 |
| Decision Date | 01 August 1991 |
| Docket Number | Nos. 90-1921,91-1055,D,90-1977 and 90-1978,OCAMPO-HOYO,s. 90-1921 |
| Parties | 34 Fed. R. Evid. Serv. 853 UNITED STATES, Appellee, v. Fabio RODRIGUEZ CORTES, Defendant, Appellant. UNITED STATES, Appellee, v. Eduardoefendant, Appellant. UNITED STATES, Appellee, v. Rafael PEREZ MARTINEZ, Defendant, Appellant. . Heard |
| Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
Scott T. Kalisch, with whom Kalisch & Lyons, Coral Gables, Fla., was on brief, for appellant Edwardo Ocampo-Hoyos.
Stephen A. LaClair, with whom Alvin E. Entin and Entin, Schwartz, Goldman, Margules & Moore, Miami, Fla., were on brief, for appellant Rafael Perez Martinez.
Jose R. Aguayo, Hato Rey, P.R., for appellant Fabio Rodriguez Cortes.
Edwin O. Vazquez, Asst. U.S. Atty., with whom Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., was on brief, for appellee.
Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and WOLF, * District Judge.
Fabio Rodriguez Cortes, Robinson Rodriguez Cortes, Eduardo Ocampo-Hoyos, Maritza Candelaria Pantoja and Rafael Perez Martinez were arrested in November of 1989 during a federal Drug Enforcement Administration (DEA) investigation of a Colombian cocaine operation. The five defendants were tried jointly for conspiracy to import cocaine into the United States and other related offenses. 1 Robinson Rodriguez Cortes was acquitted of the charges against him. His brother, Fabio Rodriguez Cortes, along with Eduardo Ocampo Hoyos and Rafael Perez Martinez, appeal their convictions. Each challenges the sufficiency of the evidence underlying his conviction and raises other claims on appeal. Maritza Candelaria Pantoja is not involved in these appeals.
The evidence consists mainly of recorded telephone conversations between undercover DEA agents and members of the cocaine conspiracy.
In August of 1989, DEA Task Force Agent Jose Morales, working undercover as "Jose," negotiated with two brothers, Eliezer and Libardo Sierra, and Jose Eduardo Lozada, also known as "Junior," leaders of a Colombian drug organization, to import large quantities of cocaine from Colombia to Puerto Rico. After an initial round of phone conversations, the Sierra brothers agreed to send twenty-six kilograms of cocaine to Agent Morales. The plan was that a suitcase with the cocaine, code-named "Carmen," would be sent aboard LACSA Airlines Flight 653 on October 22 to Luis Munoz Marin International Airport in Puerto Rico. The price for the cocaine was set at $312,000. Agent Morales also agreed to pay the Sierras an extra $20,000 to settle a debt owed by a certain Frank de Armas. Agent Morales agreed to make two cash payments to the representatives of the Sierras. They would come to Puerto Rico from Miami and would identify themselves as employees of the Sierras by giving the correct passwords to Morales.
On October 22, 1989, government agents in Puerto Rico seized the suitcase when it came off the designated flight. It held twenty-six kilograms of cocaine as per the agreement. It had been agreed beforehand that payment for the shipment would be made in two installments. The Sierra brothers, of course, did not know that the suitcase had been confiscated. On October 27, Libardo Sierra told Agent Morales that his representatives would arrive the next day and collect the first installment of $168,000. They would identify themselves with the passwords, "Libardo, Jose Eduardo, venimos por la encomienda que trajo Carmen." Roughly translated into English this means: "Libardo, Jose Eduardo, we come to get the errand of Carmen." Other agents would arrive the following Tuesday or Wednesday to collect the balance due, using the passwords, "Libardo, encomienda de Carmen." The English translation is "Libardo, the errand for Carmen." 2 On October 31, Agent Morales told Eliezer Sierra that no one had come for the money.
On November 4, Agent Morales spoke with Eliezer Sierra and Junior and was told that their collectors would be in Puerto Rico that afternoon. No one arrived, however, to collect the payment as scheduled. Two days later Agent Morales received a call from a woman who identified herself as "Maritza." Maritza told Agent Morales that she was at the Dutch Inn and would be leaving that afternoon. Another undercover agent, Agent Jorge Lampon, posing as "Lito," received calls from a woman, identifying herself as "Mari," and a man. Mari told Agent Lampon that she had "come for Carmen's errand." 3
That same day Agent Morales spoke with an individual who called himself "Willy" and agreed to meet him at a local Burger King restaurant. Willy arrived at the Burger King parking lot, and Agent Morales questioned him about the purpose of their meeting. Willy said that he had come on behalf of Libardo for Carmen's package and the documents for Carmen. When Agent Morales asked him about a suitcase and money, Willy suggested that they call Colombia to find out what was going on. Agent Morales assumed that Willy did not know about the drug transaction and let him go without arresting him.
Also that day Agent Morales received several telephone calls telling him to call "Pecos" at 721-0810, room 303. Agent Morales did so and spoke with a person whose voice he later identified as that of Robinson Rodriguez Cortes. When Agent Morales asked "Who is this?" Robinson replied, "It's from Carmen and Libardo." Agent Morales then asked Robinson if he had a code, and Robinson replied, "No, that's it," and then, "Only that, Libardo and Carmen."
At 3:40 p.m., after the encounter with Willy, Agent Morales and Agent Andres Amador, also working undercover, met Robinson Rodriguez Cortes and appellant Fabio Rodriguez Cortes at the Dutch Inn Hotel. The two brothers entered Agent Morales' car, introduced themselves as "Robin" and "Pecos," and explained that they had been sent from Miami by a woman to collect $163,000 on behalf of Libardo and Carmen. Convinced that the two were part of the conspiracy, Agent Morales arrested them.
Agents Morales and Amador then returned to the Dutch Inn where Morales had scheduled a meeting with Maritza Candelaria Pantoja and appellant Rafael Perez Martinez. Both Candelaria and Perez Martinez came over to the agents' car and got in. Agent Morales asked who had sent them. Candelaria said they were sent by "Amparo" in Miami, and Perez Martinez added, Agent Amador said, "Wait let me tell you, this a very serious matter and we want to be on the clear, you know the problems this could bring." Perez Martinez replied, "160,000 bucks." After an exchange in which Agent Morales emphasized his concern that there could be a mix-up in the deal and asked if Libardo was the person with whom they had dealt, Perez Martinez answered, Candelaria added, "Wait I have it here written down in the notebook." At one point, Candelaria talked about "Jose Lizardo," and Morales corrected her, "Libardo."
Convinced that Candelaria and Perez Martinez were involved in the conspiracy, Agent Morales drove to a bridge where they were arrested by police who had been stationed there. Candelaria's purse contained a black telephone book in which Agent Morales' telephone number and the words "Jose," "Lisandro," and "on behalf of Carmen" were written.
The next day a woman who called herself "Soledad" called from Miami to tell Agent Morales to expect a Puerto Rican woman named Maritza and her husband to collect $160,000. Soledad explained that Maritza would use the password, "Lisandro on behalf of Carmen." When Agent Morales told Soledad that the password was "Libardo," not "Lisandro," Soledad said that Maritza and her husband had the wrong password.
On the morning of November 8, Libardo Sierra called Agent Morales to tell him that two men would collect the entire payment. Sierra asked what had gone wrong with Willy. He then told Agent Morales not to ask any questions this time and that once he heard the password he should hand over the money without further discussion. Later that morning Libardo Sierra called Agent Morales again and said that his friend, "Ed, from Eduardo in English" had called him from Puerto Rico and had agreed to pick up all the money. Roughly two hours later, Ed and Agent Morales spoke. Ed said he was calling to receive the errand for Carmen. Agent Morales later identified Ed's voice as that of Eduardo Ocampo Hoyos. Agent Morales arranged for a meeting that day. A short time later he arrived at the designated address. The address he gave Ocampo Hoyos for the meeting was the building that housed the central office of the DEA. Ocampo Hoyos did not realize the significance of the address. Agent Morales asked him, "Well, and what's up, everything fine?" and Ocampo answered, "Everything [is] fine, I'm here to see Jose from Libardo and Jose Eduardo for the errand [of] Carmen." As soon as Ocampo gave the passwords, he was arrested.
More evidentiary details will be supplied during our discussion of the individual appeals.
Fabio Rodriguez Cortes, a/k/a Pecos, raises only one issue on appeal: the sufficiency of the evidence. 4 The jury found him guilty of Counts One and Three of the indictment: conspiracy to import cocaine into the customs territory of the United States in violation of 21 U.S.C. sections 952(a) and 963, and aiding and abetting in the use of a communication facility to commit a felony in violation of 21 U.S.C. section 843(b) and 18 U.S.C. section 2.
To determine whether the district court properly denied the defendant's motion for acquittal, we review the evidence in the light most favorable to the government, including all reasonable inferences to be drawn helpful to the government's position. United States v. Valencia-Lucena, 925 F.2d 506, 512 (1st Cir.1991) (citations omitted). We will uphold a jury verdict if "any reasonable juror 'after viewing the evidence in the light most favorable to the...
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