U.S. v. Aragon

Decision Date25 January 1993
Docket NumberNos. 91-5042,91-5056,s. 91-5042
Parties38 Fed. R. Evid. Serv. 103 UNITED STATES of America, Plaintiff-Appellee, v. Pedro ARAGON, a/k/a Jose, a/k/a El Tigre, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Robertulio VIANA, a/k/a Robert Viana, a/k/a Carlos, a/k/a Jackal, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Fernando BOTERO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jesus Walter JARAMILLO, Defendant-Appellant. to 91-5058.
CourtU.S. Court of Appeals — Fourth Circuit

Richard Ware Levitt, Law Offices of Richard Ware Levitt, New York City, argued (Todd Merer, New York City, on brief for appellant Viana, Reemberto Diaz, Jose Batista, Diaz & Batista, P.A., Hialeah, FL, on brief for appellants Botero and Jaramillo), for appellants.

Scott Newton Schools, Asst. U.S. Atty., Charleston, S.C., argued (E. Bart Daniel, U.S. Atty., on brief), for appellee.

Before HALL and NIEMEYER, Circuit Judges, and TILLEY, United States District Judge for the Middle District of North Carolina, sitting by designation.

TILLEY, District Judge:

The appellants, Robertulio Viana, Fernando Botero, Jesus Jaramillo, and Pedro Aragon were charged with various crimes stemming from their involvement in a foiled plan to rescue a federal prisoner from the Charleston County, South Carolina jail on February 16, 1990. Each was convicted by a jury of: (1) conspiring to effect an escape, 18 U.S.C. §§ 371, 752; (2) obstructing justice, 18 U.S.C. § 1503; (3) violating the Travel Act, 18 U.S.C. § 1952(a)(2); and (4) possessing a controlled substance with intent to distribute, 21 U.S.C. §§ 812, 841.

The appellants appeal their convictions and sentences on various grounds. For the reasons stated hereinafter, we affirm.

I.

The appellants first argue that the evidence was insufficient to prove beyond a reasonable doubt that the object of the jailbreak effort was a federal prisoner. The relevant question for this court is whether, after viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the essential 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. Cummings, 937 F.2d 941, 943 (4th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 395, 116 L.Ed.2d 345 (1991). "This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319, 99 S.Ct. at 2789.

With regard to the charge of attempted rescue, appellants contend the evidence proved the target of the escape was a state prisoner rather than a federal prisoner. There was evidence, both from the government and defense, which indicated the rescue target may have been a state prisoner. There was, however, other evidence indicating that the target may have been a federal prisoner.

Some evidence suggested that the target of the escape plan was the state prisoner, Prada. For example:

1. Lourdes Oliva, a government witness, testified that the escape object was described to her by defendant Viana as being a doctor or like a doctor. Prada is a dentist and is known as "doc" or "doctor."

2. Oliva said the escape object was waiting for his sentence to be reduced. Prada was cooperating against his codefendants in hopes of a sentence reduction.

3. Oliva said that the object, as described by Viana, was arrested in Charleston. Prada was arrested in Charleston, whereas Cruz and Perez--the other possible escape targets--were arrested on Hilton Head.

4. Prada's prison file was marked "escape risk."

5. Oliva said that according to Viana, the escape object was "so smart" he had been able to draw a map of the prison without ever having left the prison. Prada had never left the prison, whereas Cruz and Perez had.

6. The rescue was supposedly called off because the object's bed was searched and, in fact, Prada's bed had been searched just before the plan was aborted.

Evidence that the object of the escape effort was the federal prisoner, Cruz, included the following:

1. According to Rego, a government witness, Viana said the object had been arrested on a 500 kilogram case, and according to Oliva, the object was arrested on a 400 kilogram case. Cruz and Perez were arrested in the Hilton Head case, which involved a total of 502 kilograms.

2. According to Oliva, Viana said the object had been arrested at a hotel when he tried to pick up a van with the drugs. This describes the actual circumstances of Cruz's arrest.

3. State prisoner Prada testified for the government and denied being the escape target.

While some evidence pointed toward Prada, and other evidence pointed toward Cruz and Perez, still other evidence was equivocal, or pointed to the possibility of an unidentified person being the object:

1. Oliva claimed to have been told by Viana that the object was of normal height, between 5'5"' and 5'7"'. Cruz is 6'0"', Perez is 5'7"' and Prada is 5'9"'.

2. Rego claimed to have been told by Viana that the object was incarcerated without bail. Cruz and Perez were each denied bail. Prada's bail had been set at $1,250,000; however, his bail was revoked thereafter by virtue of a bench warrant.

3. Oliva and Rego gave contradictory testimony regarding the status of the escape object's case. Rego said he had not yet been tried, whereas Oliva said he was awaiting sentencing or had already been sentenced. Cruz in fact was awaiting sentencing, whereas neither Perez nor Prada had been tried.

4. Both Rego and Oliva said the escape object was Colombian. Prada is Colombian, whereas Cruz's and Perez's nationality was unclear.

5. Oliva said that the object, as described by Viana, was between 38 and 39 years old. Prada was 34, whereas Cruz was 29 and Perez was 32 or 33.

When a jury can choose between conflicting evidence, that decision should stand. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. Taking the evidence in the light most favorable to the government, there was sufficient evidence from which a reasonable juror could find that the appellants intended to assist in the jailbreak of a federal prisoner. A trier of fact could have chosen to believe that part of the government witnesses' testimony which related to Cruz as opposed to Prada, especially in light of Prada's testimony that he was not the escape target.

II.

In lieu of calling two witnesses to the stand, the parties had entered into written stipulations regarding what the testimony would have been had the witnesses actually testified. The appellants claim that the district court erred by permitting the jury to take the written stipulations along with other trial exhibits into the jury room during its deliberation. The stipulations related to testimony of an incarcerated individual who was familiar with the Ochoa Cocaine Cartel, and the testimony of the FBI agent who had investigated the Cruz/Perez case.

Stipulations as to testimony may be admitted into evidence. Accord United States v. Lopez, 611 F.2d 44, 46 (4th Cir.1979). Therefore absent clear prejudice to appellants, which has not been shown in this case, the decision to send properly admitted exhibits to the jury room rests within the discretion of the trial court. See e.g. United States v. Lujan, 936 F.2d 406, 411 (9th Cir.1991); United States v. Betancourt, 838 F.2d 168, 175 (6th Cir.), cert. denied, 486 U.S. 1013, 108 S.Ct. 1748, 100 L.Ed.2d 210 (1988); United States v. Hines, 696 F.2d 722, 733-34 (10th Cir.1983).

III.

Appellants next claim that the court erred when it permitted William Roa to testify that Cruz had asked him whether it would be easy to escape from the Georgetown County Jail. The appellants argue that the evidence was irrelevant and highly prejudicial. The district court judge admitted the statement because it showed that escape was on Cruz's mind. United States v. Lujan, 936 F.2d 406, 411 (9th Cir.1991).

The trial court has wide discretion in addressing an argument under Fed.R.Evid. 403, and its decision not to exclude evidence under Rule 403 will be reversed only in "the most extraordinary circumstances." United States v. Heyward, 729 F.2d 297, 301 n. 2 (4th Cir.1984), cert. denied, 469 U.S. 1105, 105 S.Ct. 776, 83 L.Ed.2d 772 (1985).

As has already been discussed, one of the most seriously disputed facts in the case was the identity of the person to be rescued. Because Roa's testimony tended to show that an alleged jailbreak target was, in fact, discussing escape, the testimony was highly relevant. We do not find this relevance to have been substantially outweighed by undue prejudice.

IV.

Appellants next contend that the court erred by instructing the jury that the government was not required to prove they were aware of the federal status of the intended target.

The statutes at issue--18 U.S.C. § 752(a) and 18 U.S.C. § 1503--do not explicitly require that the defendant be aware of the target's status. Because knowledge is not explicitly mentioned, it is not an essential element of either offense and, therefore, is unnecessary for the government to prove. See e.g. United States v. Feola, 420 U.S. 671, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975); United States v. Ardito, 782 F.2d 358 (2d Cir.), cert. denied sub nom. Pollina v. United States, 475 U.S. 1141, 106 S.Ct. 1792, 90 L.Ed.2d 338 and cert. denied sub nom. Ardito v. United States, 476 U.S. 1160, 106 S.Ct. 2281, 90 L.Ed.2d 723 (1986); United States v. Hobson, 519 F.2d 765 (9th Cir.), cert. denied sub nom. Newman v. United States, 423 U.S. 931, 96 S.Ct. 283, 46 L.Ed.2d 261 (1975).

V.

Two of the Appellants, Aragon and Jaramillo, argue that the district judge should not have told the jury during final instructions that there was no evidence connecting...

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