Paz v. United States, 28997.

• Citation: 462 F.2d 740
• Decision Date: 29 June 1972
• Docket Number: No. 28997.,28997.
• Parties: Pedro Luis Rodriguez y PAZ et al., Defendants-Appellants, v. UNITED STATES of America, Plaintiff-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

462 F.2d 740 (1972)

Pedro Luis Rodriguez y PAZ et al., Defendants-Appellants, v. UNITED STATES of America, Plaintiff-Appellee.

No. 28997.

United States Court of Appeals, Fifth Circuit.

June 29, 1972.

COPYRIGHT MATERIAL OMITTED

William A. Daniel, Jr., Miami, Fla., for Dulce Espinosa.

Gino P. Negretti, Miami, Fla., for Fernandez, Lum & Echavarry.

James E. Siff, New York City, for Jackson.

Lawrence E. Hoffman, Miami Beach, Fla., for Acosta.

Frank Ragano, Miami, Fla., for Rodriguez y Paz.

Max Kogen, Miami, Fla., for Inchaustegui.

Robert W. Rust, U.S. Atty., J. V. Eskenazi, Neal R. Sonnett, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

Before BELL, AINSWORTH and GODBOLD, Circuit Judges.

GODBOLD, Circuit Judge.

There were 13 defendants and 23 additional named co-conspirators in this complex and lengthy narcotics case, which concerns drug traffic activities in Miami, New York, Detroit, Nicaragua, South American countries, and elsewhere, and involving dozens of persons. Four defendants fled and were not tried. In a lengthy trial in Miami, Florida, ending June 23, 1970, one defendant was acquitted. The remaining eight—Paz, Raul Fernandez, Acosta, Lum, Echavarry, Espinosa, Jackson and Inchaustegui —were convicted under Count I, conspiracy to import heroin and cocaine.¹ Five of them—Paz, Acosta, Raul Fernandez, Echavarry and Inchaustegui—were convicted under Count II, transportation and concealment of cocaine.² All eight appeal.

We reverse the convictions under Count Two. As to several issues, we affirm. And we remand for an evidentiary hearing on the issue of the presence in the jury room of non-evidentiary material relating to drugs and drug traffic.

The government's evidence tended to show a conspiracy of the following general nature. The original actors were defendants Paz, Acosta and Raul Fernandez, who were associated together in drug activities in the New York area. Subsequently Paz and his wife, defendant Dulce Espinosa, went to the Central American city of Managua, Nicaragua, which became their base of operations, while Raul Fernandez and Acosta began to operate principally out of Miami. Illegal shipments of drugs were brought into Miami from Managua and South American points, but principally from Managua, by young American women couriers who entered Miami with parcels of drugs strapped to their bodies. The usual payment to the courier was $1,000. The couriers also transported between Miami and Managua letters, funds, lactose (for "cutting" drugs) and even merchandise destined as gifts for Nicaraguan officials. Many of these young couriers were named as co-conspirators but not defendants. Defendant Anna Echavarry accompanied couriers on numerous flights between Miami and Central and South America and assisted in arrangements at these foreign points of origin.

The couriers were recruited by co-conspirator Frank Cocossa, assisted by coconspirator Gloria Richards. Also Cocossa made several trips between Miami and Managua, where he met Paz a number of times, and he assisted in moving at least one shipment of drugs to New York. Cocossa had been brought into the operation by defendant Inchaustegui, whose activities were chiefly in Miami but who was at times in Managua. Inchaustegui also supplied expense money to couriers, received incoming shipments, and supplied lactose.

Defendants Acosta and Raul Fernandez were active at the Miami end. They supplied drugs to a New York group which included a number of co-conspirators and defendant Lucrecia Lum. Lum also transported, sold and guarded drugs. Defendant Jackson was a purchaser of the ring's drugs, based in the Detroit area. Also he assisted in transportation of drugs. Defendant Raul Fernandez was from time to time engaged in collecting monies due from purchasers.

Facets of the conspiracy were described in detail by several couriers, the recruiters Cocossa and Gloria Richards, two members of the New York group, and several government agents.

1.

There is no merit to the contention that there were multiple conspiracies rather than one. This is a question for the trier of the facts, Koolish v. United States, 340 F.2d 513 (8th Cir.), cert. denied, 381 U.S. 951, 85 S.Ct. 1805, 14 L.Ed.2d 724 (1965), and it is quite clear that there was sufficient evidence on which to submit it to the jury.

2.

The trial court erred in denying the timely motions of the Count Two defendants for judgment of acquittal on that count, which was the substantive count. Count Two charged that seven named defendants "did fraudulently, knowingly and wilfully receive, conceal and facilitate the transportation and concealment" of approximately six pounds, 10 ounces of cocaine on or about September 27, 1968, at Miami, in violation of 21 U.S.C. § 174. Five of the defendants were among those already described—Paz, Acosta, Raul Fernandez, Echavarry, and Inchaustegui. The other two were Norberto Fernandez, whose motion of judgment for acquittal was granted, and Mario Marrero, who fled and was not tried but was described in testimony as a participant in the conspiracy.

Evidence concerning this particular charge was that on September 27, 1968, a government agent, acting on information the contents of which were unrevealed, put under surveillance deplaning passengers coming into the customs enclosure of the Miami airport. He observed a female passenger, Denise Bethancourt, who had arrived on a Lanica Airline flight from Managua, Nicaragua. He noted that she was bulky around the hips. The agent intercepted her after she had made her customs declaration and had completed a customs inspection. She was searched by female inspectors, who found taped to her body, underneath a girdle, six plastic bags of cocaine. Miss Bethancourt was wearing an "A-line" dress, a loose fitting dress that hangs from the shoulders and does not have a tight or fitted waist.

Prior to the arrival of the Lanica flight the agent checked the area outside of the customs enclosure at which vehicles park to pick up passengers and luggage, and noted a gold Buick Riviera and took its license number. Approximately two weeks before, while surveilling the Miami airport, the agent had observed the same Buick just prior to the arrival of the Lanica flight from Managua, Nicaragua. Also, in September, prior to September 27, the agent had observed the same automobile parked at the residence of Marrero in Hialeah, near Miami. There was ample testimony of Marrero's part in the conspiracy. After taking the license number on September 27, the agent had it checked and found that the car was registered in the name of Gilbert Roque at a Miami address which was shown to be the residence of defendant Acosta, a central figure in the conspiracy. Miss Bethancourt was not seen in or about the Buick at the airport or elsewhere. Her ticket stub showed that she had departed Miami on September 22, 1968.

At trial Miss Bethancourt claimed the privilege against self-incrimination and did not testify. There was no testimony by any of the other couriers, or the recruiters of couriers, or by anyone else, identifying her as a courier for this ring, or as even being in contact with or in the presence of any defendant or coconspirator, nor was the cocaine which she brought in connected by direct evidence to the conspiracy. In fact her name was mentioned in the testimony with respect to only this single incident at the Miami airport.³

To sum up, the evidence on the substantive count was this:

(1) Of a conspiracy, a facet of which was to import cocaine into Miami from Managua, Nicaragua, with testimony tending to show participation therein by each of the convicted Count Two defendants at either the Miami or the Managua end, or both;

(2) Of numerous shipments of cocaine made from Managua to Miami pursuant to the conspiracy and over a period of approximately a year, including September 1968;

(3) Of a modus operandi of shipment the same as that employed by Miss Bethancourt;

(4) Of the presence, in the vicinity of the customs area, of a gold Buick which had been seen earlier at the residence of a participant in the conspiracy and which was registered at the address of a central participant but in another name, and which had been observed at the airport prior to arrival of another flight from Managua.

This is not enough circumstantial evidence on which to convict. A jury could not reasonably conclude that the evidence excluded every reasonable hypothesis but that of guilt. Surrett v. United States, 421 F.2d 403 (5th Cir. 1970); Harper v. United States, 405 F.2d 185 (5th Cir. 1969). The possibility cannot reasonably be excluded that Miss Bethancourt was acting solely on her own behalf and had no connection with this ring, or that she was acting as part of another group. There is a suspicion that the Buick was at the airport to meet her, but it is no more than suspicion. The reason for its presence may have been innocent, and, if it was there as part of the conspiracy, the purpose of its presence was not necessarily connected with the arrival of Miss Bethancourt.

Meyers v. United States, 310 F.2d 801 (5th Cir. 1962), relied upon by the government, is no help to it. In that case the courier attempted to bring across an international bridge marijuana concealed in an automobile door. The codefendant was her husband. He was seen on the bridge less than two hours after his wife was stopped. In his possession was a cologne bottle, and the odor from it was similar to that of the heavily perfumed car driven by his wife. The marijuana was concealed in a position difficult to reach, and the inspector who retrieved it suffered scratches on his arm. Defendant, when arrested, had similar scratches on his arm, and was carrying a pair of gloves. No such nexus between courier and any defendant has been established in the present case.

3.

The case must be remanded for a limited post-trial hearing because of the presence in the jury room during the trial of two...