U.S. v. Aguiar

• Decision Date: 04 February 1980
• Docket Number: 79-1419 and 79-2084,Nos. 78-5748,MOREJON-PACHECO and L,s. 78-5748
• Citation: 610 F.2d 1296
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Luis AGUIAR, Jorge Palenzuela and Julio Morejon-Pacheco, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Virgen PALENZUELA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Juliouis Aguiar, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1296

610 F.2d 1296

UNITED STATES of America, Plaintiff-Appellee, v. Luis AGUIAR, Jorge Palenzuela and Julio Morejon-Pacheco,

Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee, v. Virgen PALENZUELA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Julio MOREJON-PACHECO and Luis Aguiar, Defendants-Appellants.

Nos. 78-5748, 79-1419 and 79-2084.

United States Court of Appeals, Fifth Circuit.

Feb. 4, 1980.

Walter E. Gwinn, Miami, Fla., for Palenzuela.

Michael J. Osman, Miami, Fla., for Morejon-Pacheco.

Robert A. Spiegel, Coral Gables, Fla., Richard J. Essen, Miami, Fla., for Aguiar.

Bruce A. Zimet, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Appeals from the United States District Court For the Southern District of Florida.

Before AINSWORTH, VANCE and ANDERSON, Circuit Judges.

VANCE, Circuit Judge:

These appeals arise out of a federal prosecution of Jorge Palenzuela, Virgen Palenzuela, Luis Aguiar, Julio Morejon-Pacheco and others ¹ for offenses relating to their alleged involvement in the illegal trafficking of cocaine. After a jury trial in federal district court, Aguiar, Morejon and Jorge Palenzuela were convicted of conspiracy to distribute cocaine, 21 U.S.C. § 846. Aguiar and Morejon were also convicted for distributing cocaine, Id. § 841(a)(1) and 18 U.S.C. § 2. Morejon additionally was convicted of possession with intent to distribute cocaine, 21 U.S.C. § 841(a)(1), ² and of the knowing use of a communications facility in the commission of a narcotic-related felony, Id. § 843(b). The case of Virgen Palenzuela, charged with conspiracy to distribute cocaine and with possession with the intent to distribute cocaine, Id. §§ 841(a)(1), 846, was severed from that of her co-defendants. Her appeal is from the denial of her motion for dismissal on double jeopardy grounds. For reasons stated below, the challenges to the trial judge's rulings are for the most part without merit. We reverse, however, the district court's decision denying Jorge Palenzuela's motion for acquittal based on the insufficiency of the evidence to sustain his conspiracy conviction.

I. Facts

In early April 1977, Agent Norman Jezzeny of the Nevada district of the Drug Enforcement Administration and Agent Jorge Fonte of the State of Nevada Division of Investigation of Narcotics began an investigation into drug trafficking in Las Vegas, Nevada. Acting in their undercover capacity, they contacted Jose Aleman in Las Vegas, introducing themselves as "men in the drug business," and subsequently expressed their interest in a drug deal. Aleman mentioned that he knew a man in Key West, Florida, that might be able to help them, and that he might arrange a meeting with this man.

Fonte and Jezzeny flew to Florida on April 26, 1977, to meet Luis Aguiar, the person introduced by Aleman. They met the next day in Key West. Because Jezzeny does not speak Spanish, Fonte translated the conversation, as he continued to do on subsequent occasions. The agents asked Aguiar about the availability of a regular supply of significant quantities of cocaine. Aguiar had none, but promised to look into some contacts for the agents. Nothing else came of this meeting, and the agents returned to Las Vegas.

They returned to Miami in June and July to meet with Aguiar. The three agreed that, if an initial transaction for cocaine culminated successfully, the agents would begin purchasing a regular monthly supply of cocaine. Apparently realizing that alone he could not provide the agents the amounts of cocaine sought, Aguiar began seeking alternative sources of the illicit drug. ³ At their July 15 meeting, therefore, Aguiar introduced the agents to Rene Benitez, and Aguiar told Benitez of his difficulties in procuring cocaine for the agents and asked Benitez for assistance. Benitez, in turn, brought the agents and Aguiar to Julio Morejon-Pacheco. Morejon showed Fonte and Jezzeny samples of various lots of cocaine and attempted to secure the ten kilograms of cocaine they sought. The agents, Morejon and Benitez held further discussions in subsequent days to settle the price ($380,000) and mode of exchange.

Morejon, with Benitez and the agents present, made several telephone calls on July 17, 1977, to set up the cocaine transaction. In two of these calls, Morejon spoke with individuals whom he addressed as "Mami" and "Pepi." ⁴ After these calls, they discussed a $25,000 deposit to hold the ten kilograms of cocaine until the next day. Saying that Aguiar wanted this transaction to go through, Benitez offered to guarantee the $25,000 deposit.

After a number of changes in the plans for the transaction, Benitez and Morejon told Jezzeny on the day of the transaction, July 18, that they had two safe houses. Morejon and Jezzeny would go to one house to view and inspect the cocaine, while Benitez and Fonte proceeded to the second safe house, where another man would help count the purchase money brought by Fonte. When all parties were satisfied, Fonte was to leave the money at the counting house, and Jezzeny would take the cocaine with him from the other safe house.

Jezzeny went with Morejon to the home of Jorge and Virgen Palenzuela (husband and wife). Jorge was not at home. ⁵ Virgen took the men to the bedroom, where she produced and displayed five and one- half (of the ten) kilograms of cocaine to Jezzeny. He weighed the cocaine on a triple-beam scale that was on Mrs. Palenzuela's dresser and performed several field tests. She then offered to give Jezzeny an extra pound of cocaine, which she obtained from a drawer in her bathroom, if he was dissatisfied with the quality of the ten kilograms. ⁶ The three then waited for the call from the second safe house. On the way to the "counting" house, the location of which was unknown to Fonte, Fonte mistakenly arrested Benitez, searched him and removed a piece of paper with an address written on it. Fonte proceeded to the address and knocked on the door. Mrs. Ortega, who is Mrs. Palenzuela's mother and the house's owner, opened the door.

A few moments earlier, Jorge Palenzuela had called Morejon. They spoke in Spanish, and Morejon then reported to the others that they were "not there yet" (referring to Benitez and Fonte). The telephone conversation between Morejon and Jorge resumed until Jorge said "They're here," handed the telephone to Fonte and left the room. Fonte then told Morejon that the deal was off and to meet him with Jezzeny at a certain location. ⁷ Morejon told the others that something was wrong.

On hearing this news, Mrs. Palenzuela picked up the box containing the five and one-half kilograms of cocaine, and told Jezzeny that "I'm going to give it back to the people who own it. They have to take it someplace where it's safe." She took the box to the front of the house and gave it to Mrs. Torres, who left the house. The bonus pound remained in the house.

Shortly thereafter, Jezzeny and Morejon arrived at the designated location and met Fonte. Morejon was then arrested. Jezzeny, Fonte, other DEA agents and several uniformed police officers in six or seven police cars proceeded to the Palenzuela home. When they arrived, approximately twenty-five minutes after Jezzeny and Morejon had left, the police and agents found the Palenzuelas outside. Mr. Palenzuela was playing with the children, and Mrs. Palenzuela was talking with neighbors and Luis Triana. They immediately arrested Mr. and Mrs. Palenzuela and Mr. Triana. None of the defendants or neighbors offered any resistance nor were any of them armed. The agents next, without consent, entered the house and conducted a search of the premises that lasted about twenty minutes. The agents took the defendants through each room as they searched it. They found the pound of cocaine and $26,000 in the bathroom adjoining the bedroom. The arrests and search were both warrantless.

The trial of Virgen Palenzuela, Jorge Palenzuela, Aguiar, Benitez, Morejon, Gonzalez and Basilia commenced on September 25, 1978, before a jury in the Southern District of Florida. Following the completion of the government's case, Virgen Palenzuela informed the court that she had elected to testify. Some of her co-defendants moved for a mistrial or severance of their cases. She was cross-examined by government counsel and by counsel for Morejon. ⁸ At the completion of her testimony, her counsel informed the court of his intent to comment during closing argument on Morejon's failure to testify. All defendants, except Virgen, renewed the motions for a mistrial or severance.

The court, however, severed the trial of Mrs. Palenzuela and proceeded with the trial against the remaining defendants. Mrs. Palenzuela did not object, although she had not moved for the severance. The remaining defendants were convicted by the jury.

II. Severance of Virgen Palenzuela and Double Jeopardy Bar

On appeal Virgen Palenzuela argues that the trial court improperly denied her motion to dismiss the indictment. She contends that she was wrongly severed from the trial of her six co-defendants and that a retrial would violate her constitutional protection against double jeopardy. We disagree.

Once jeopardy attaches, as it did for Virgen Palenzuela when the jury was sworn to try this case, Illinois v. Somerville, 410 U.S. 458, 467-68, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973), a criminal defendant normally will not lose the opportunity to seek a favorable verdict from the jury and will not be required to stand trial a second time, Arizona v. Washington, 434 U.S. 497, 503, 504, 98 S.Ct. 824, 829-30, 54 L.Ed.2d 717 (1978); Wade v. Hunter, 336 U.S. 684, 688-90, 69 S.Ct. 834, 93 L.Ed. 974 (1949). An exception to this rule is made if the defendant consents to a retrial, United States v. Kessler, 530 F.2d 1246, 1255 (5th Cir. 1976) or if a retrial before a new jury is mandated by some form of manifest necessity, United States v. Kin Ping Cheung, 485 F.2d 689, 690-91 (5th Cir. 1973)....