State v. Velez, CR90-230

• Citation: 588 So.2d 116
• Decision Date: 02 October 1991
• Docket Number: No. CR90-230,CR90-230
• Parties: STATE of Louisiana v. Miguel VELEZ, Bernardo Vasquez, and Luis Carlos Quintero-Cruz.
• Court: Court of Appeal of Louisiana — District of US

Page 116

588 So.2d 116

STATE of Louisiana v. Miguel VELEZ, Bernardo Vasquez, and Luis Carlos Quintero-Cruz.

No. CR90-230.

Court of Appeal of Louisiana,

Third Circuit.

Oct. 2, 1991.

Writ Denied Jan. 30, 1992.

Robert L. Moore, Moore & Rabin, P.A., Arthur Joel Berger, Miami, Fla., for Quintero-Cruz.

Janice Burton Sharpstein, Richard A. Sharpstein, Sharpstein and Sharpstein, Coconut Grove, Fla., for Velez.

Thomas L. Lorenzi, Lorenzi & Sanchez, Lake Charles, for Vasquez.

Doug Moreau, Dist. Atty., Aaron Brooks, Premila Burns, Asst. Dist. Attys., Baton Rouge, for plaintiff-appellee.

Before DOMENGEAUX, C.J., and STOKER and LABORDE, JJ.

DOMENGEAUX, Chief Judge.

Defendants, Miguel Velez, Bernardo Antonio Vasquez, and Luis Carlos Quintero-Cruz, were charged by an East Baton Rouge Parish grand jury indictment with the first degree murder of Adler B. Seal, a violation of La.R.S. 14:30. Due to extensive pretrial publicity in Baton Rouge, a motion by defendants for change of venue was granted and the matter was transferred to the Fourteenth Judicial District Court in Calcasieu Parish. After a five week trial, the twelve person jury unanimously found each of the defendants guilty of first degree murder. At the penalty phase of the trial, the jury recommended that each of the defendants be sentenced to life imprisonment without benefit of parole, probation or suspension of sentence. The trial court imposed sentence in accordance with the jury's determination. Defendants now appeal their convictions to this court. We will consider all assignments of error that have been briefed. Those which have not been briefed are considered abandoned. Uniform Rules, Courts of Appeal, Rule 2-12.4.

FACTS

On February 19, 1986, Adler B. "Barry" Seal was shot to death with machine gun fire in the parking lot of a Salvation Army halfway house in Baton Rouge. The facts and circumstances leading up to Seal's death appear in the record as follows:

Barry Seal was a pilot and drug smuggler for the Medellin Cartel, a Colombian cocaine enterprise. While employed by the Cartel, Seal flew numerous shipments of cocaine from Colombia to the United States, earning as much as $500,000 per flight. Seal, who was known to the members of the Medellin Cartel as McKenzie, was eventually arrested in connection with his drug smuggling activities. He was indicted in a Florida federal court, tried, convicted, and sentenced to 10 years in a federal prison.

Shortly after Seal was sentenced, he approached the Drug Enforcement Administration with a proposal to cooperate with the government as an informant. The federal government eventually decided to use Seal as an informant, agreeing to advise the sentencing judge of his cooperation at hearings on any motions for reduction of sentence. Pursuant to this agreement, Seal began working as a federal informant in March of 1984.

Richard Gregory, United States Attorney for the Southern District of Florida, testified that Barry Seal was vitally important to the prosecution of drug traffickers, to the extent that many convictions could not have been obtained without his testimony. As a result of Seal's cooperation, indictments were brought against Pablo Escobar and Jorge Ochoa, two of the top men in the Medellin Cartel. Shortly after these indictments were returned in July of 1984, Jorge Ochoa was arrested in Spain. Extradition procedures were begun, and Seal provided the supporting affidavits which were filed in the Spanish courts.

In November of 1984, a documentary entitled "Uncle Sam Wants You" was produced and aired by WBRZ-TV in Baton Rouge. The documentary was prepared by investigative reporter John Camp and outlined Seal's experiences as a drug smuggler and federal informant.

Max Mermelstein, a former drug trafficker and member of the Medellin Cartel, testified that in December of 1984, he attended a meeting at the Miami home of Raphael Cardona-Salazar, another member of the Medellin Cartel. Also present at Cardona-Salazar's residence were the defendant, Miguel Velez (who is sometimes referred to in the record as "Cumbamba," the Spanish word for "chin"), an employee of Fabio Ochoa's named Cano, and several others. Fabio Ochoa had taken over the leadership of the Cartel after Jorge Ochoa was arrested in Spain. Away from the others, Mermelstein, Cardona-Salazar, and Cano watched a video of "Uncle Sam Wants You", and Mermelstein was instructed that he had been selected to take care of Barry Seal. Seal was to be kidnapped and returned to Colombia or killed outright. Either at this meeting or at a second meeting, Fabio Ochoa and Pablo Escobar were contacted by telephone, authorized the contract, and personally thanked Mermelstein for agreeing to take it on.

The price for kidnapping Seal was $1,000,000, while the price for murdering him was $500,000. Mermelstein was chosen to carry out the contract because he was American and would not be noticed in Baton Rouge the way Colombians would. He testified that he accepted the contract out of fear for the safety of himself and his family. Mermelstein was given expense money and a variety of information on Seal's residence, vehicles, restaurants which he frequented, and other personal matters. Pursuant to the contract, Mermelstein made three trips to Louisiana and was unable to locate Seal. He enlisted the help of two men, John Roberts and Bob Dragan, during his trips to Louisiana but was unsuccessful in carrying out the contract.

Mermelstein further testified that another meeting was held in February of 1985, during which discussions were had concerning the contract on Seal. Defendant Velez was present at this meeting. Cardona-Salazar said that he was being pressured by Pablo Escobar and the Ochoas to have Seal eliminated as soon as possible. At the conclusion of this meeting, Velez expressed privately to Mermelstein his displeasure at not being included in the contract on Seal. He inquired as to the details of the contract and expressed interest in obtaining the contract for himself. Velez then stated that he would complete the contract even if it meant taking out Seal's wife and children in the process. Mermelstein advised Velez he had no authority to include him and that the only persons who could do so were Fabio Ochoa, Pablo Escobar, or Raphael Cardona-Salazar. Velez stated that he intended to approach them about being included in the contract, but Mermelstein did not state whether Velez had carried out his intention or if Velez had been given the necessary permission to take over the contract.

Mermelstein noted that Velez was the last person he saw in physical possession of the Mac-10 machine gun which Cardona-Salazar had previously test fired in Mermelstein's home, and which was later used to kill Seal. ¹ Before Mermelstein was able to carry out the murder contract on Barry Seal's life, he was arrested for drug smuggling activities and became a government informant protected by the federal government's witness protection program.

Another government witness, Luis Carlos Uribe-Munera, associated with the Medellin Cartel for a number of years, testified that he was asked by a representative of the Ochoa family to go to the United States and kill someone. He did not know the proposed victim's name, but was told that he was the only person who could damage Jorge Ochoa after he was arrested in Spain. Uribe-Munera and another Colombian accepted the contract to kill this witness but later backed out. Shortly thereafter, Uribe-Munera's cohort was murdered and Uribe-Munera himself was shot five times. On cross-examination, Uribe-Munera admitted that he was a revolutionary terrorist and was addicted to crack cocaine or cocaine paste from 1969 until his arrest in 1986. He is currently serving time in a United States federal prison where he takes medication for numerous health problems.

Meanwhile, because of Barry Seal's cooperation with the federal government, his 10-year sentence in Florida was reduced to time served. Pursuant to his agreement with the federal government, Seal pleaded guilty to drug charges in a Louisiana federal court. Lewis Unglesby, Seal's attorney from 1984 until his death, testified that it was his understanding that the agreement provided that Seal could receive no harsher sentence in Louisiana than what the federal court in Florida had imposed.

At Seal's Louisiana sentencing, United States District Judge Polozola recognized Seal's agreement with the government but sentenced Seal to a term of probation, with the condition that he reside in a Baton Rouge Salvation Army halfway house for six months. Seal was required to report to the halfway house at 6:00 p.m. each day, spend the night, and leave the following morning at 7:00 a.m. On January 24, 1986, Barry Seal reported to the halfway house to begin serving his sentence. As feared by Seal's attorney, Seal was murdered three weeks later on February 19, 1986.

The evidence adduced at trial reveals the following activities of the defendants and certain unindicted and indicted coconspirators in the days surrounding the murder of Barry Seal. Airline, hotel, and car rental records indicate that on February 12, 1986, defendant Bernardo Antonio Vasquez took an Eastern Airlines flight from Miami to New Orleans and checked into the New Orleans Airport Hilton. He then rented an Oldsmobile from Avis for a period of seven days. Four days later, on February 16, 1986, defendant Miguel Velez arrived in New Orleans on an Eastern Airlines flight from Miami. Traveling with Velez were Heriberto Sanchez Cardenas and John Jairo Cardona Garcia. Upon arrival, Velez checked into the same Airport Hilton where Vasquez had registered four days earlier. That same day, Vasquez rented another vehicle, a Lincoln Town Car, this time from Budget Car Rental. Meanwhile, defendant Luis Carlos Quintero-Cruz had entered the United States illegally through Mexico. This was revealed by an immigration official who interviewed Cruz...