U.S. v. Arbane, 04-15727.

• Decision Date: 21 April 2006
• Docket Number: No. 04-15727.,04-15727.
• Citation: 446 F.3d 1223
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mehrzad ARBANE, a.k.a. Tony, a.k.a. El Turco, a.k.a. Achi Saba, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

446 F.3d 1223

UNITED STATES of America, Plaintiff-Appellee, v. Mehrzad ARBANE, a.k.a. Tony, a.k.a. El Turco, a.k.a. Achi Saba, Defendant-Appellant.

No. 04-15727.

United States Court of Appeals, Eleventh Circuit.

April 21, 2006.

Neil M. Schuster, Miami, FL, for Arbane.

Kathleen M. Salyer, Anne R. Schultz, Asst. U.S. Atty., Lisa A. Hirsch, Miami, FL, for U.S.

Appeal from the United States District Court for the Southern District of Florida.

Before BARKETT and WILSON, Circuit Judges, and CONWAY^*, District Judge.

BARKETT, Circuit Judge:

Mehrzah Arbane appeals his conviction, following a jury trial, for conspiracy to import five kilograms or more of cocaine into the United States in violation of 21 U.S.C. §§ 952(a), 960(b)(1)(B), and 963. On appeal, Arbane argues that: (1) we lack jurisdiction to try, imprison, and punish him because his presence in the United States was procured in violation of the extradition treaty between the United States and Ecuador; (2) the trial court erred in admitting evidence of prior unrelated crimes involving alien smuggling and false documents while excluding evidence of Arbane's acquittal in an Ecuadorian criminal tribunal for possession of the drugs in question in this case; (3) the trial court erred in denying Arbane's motion for mistrial based on testimony highlighting Arbane's invocation of his right to remain silent in the context of the Ecuadorian criminal proceedings; (4) the evidence was insufficient to support the conviction; and (5) the trial court erred in imposing a 235-month sentence in violation of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We conclude that the evidence admitted at trial was insufficient to support his conviction for conspiracy to import cocaine into the United States, thus we address only Arbane's arguments on jurisdiction and sufficiency of the evidence.

I. BACKGROUND

Arbane was indicted on one count of conspiracy to import five kilograms or more of cocaine. The indictment alleged that Arbane was guilty of a conspiracy to import cocaine into the United States which commenced in October 2001 and ended on January 8, 2002. During Arbane's trial, the government's key witness was Jose Jairo Velez, a government informant who testified that he and Arbane had engaged in various criminal activities, including the exportation of cocaine from Ecuador. Arbane was convicted and sentenced to 235-months' imprisonment, a five-year term of supervised release, a $100 special assessment, and a $5,000 fine. He now brings this timely appeal.

II. DISCUSSION

A. Jurisdiction

Arbane first challenges whether there was jurisdiction to try him in the Southern District of Florida because of the manner in which his presence in the United States was obtained. After Arbane was acquitted on drug possession charges brought in Ecuador, he was ordered deported to Iran. En route to Iran, Arbane's plane landed for a stopover in Houston, Texas, where Arbane was arrested on the instant indictment and removed to the Southern District of Florida. Arbane argues that because he arrived in the United States outside of the normal judicial and treaty processes, the court lacked jurisdiction to try, convict, and imprison him.

We conclude that the Supreme Court's decision in United States v. Alvarez-Machain, 504 U.S. 655, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992), precludes relief on this basis. In Alvarez-Machain, the Court held that unless an extradition treaty contains an explicit provision making the treaty the exclusive means by which a defendant's presence may be secured, extra-treaty seizures are permitted. Id. at 664, 112 S.Ct. 2188. Alvarez-Machain was forcibly abducted from Mexico at the behest of the DEA to stand trial in the United States. The Court dismissed Alvarez-Machain's claim because our treaty with Mexico did not expressly forbid abductions to secure a defendant's presence. Id. Whereas the defendant in Alvarez-Machain was abducted by law enforcement agents, Arbane was simply placed, by Ecuadorian officials, on a plane that stopped in the United States. Arbane does not and cannot claim that our extradition treaty with Ecuador contains a clause expressly requiring that we secure his presence in accordance with the treaty.

Arbane likewise cannot point to a law which divests us of jurisdiction under these circumstances. "[T]he power of a court to try a person for crime is not impaired by the fact that he had been brought within the court's jurisdiction by reason of a `forcible abduction.'" Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 96 L.Ed. 541 (1952) (citing Ker v. Illinois, 119 U.S. 436, 444, 7 S.Ct. 225, 30 L.Ed. 421 (1886)). The Supreme Court's Ker-Frisbie doctrine holds that a criminal defendant cannot defeat personal jurisdiction by asserting the illegality of the procurement of his presence in the relevant jurisdiction — here, the United States. See, e.g., United States v. Noriega, 117 F.3d 1206, 1214 (11th Cir.1997). Thus, Arbane is not entitled to dismissal for lack of jurisdiction.

B. Sufficiency of the Evidence¹

Arbane argues that the government's evidence is insufficient to support his conspiracy conviction because the government failed to prove that he conspired with anyone other than a government informant, which is insufficient to support a conviction for conspiracy and requires reversal.²

The evidence of the charged conspiracy in this case was presented only through the testimony of confidential informant Jose Jairo Velez.³ Velez testified that he and Arbane met in 1999 and began engaging in various illegal conduct throughout Central America, South America, and Mexico. Eventually, they engaged in the drug trade. He and Arbane shipped drugs from Ecuador to Mexico, from Mexico to Guatemala, from Guatemala to Panama, and from Panama to Ecuador. These transactions began in 1999 and ended in December 2000.

In early 2000, Velez and Arbane purchased and shipped cocaine from Ecuador to Mexico, where they sold fifteen kilograms to Jose Luis Jimenez, known as the Engineer. Just before Easter in 2000, the Engineer transported the fifteen kilograms to New York, where they were sold. Velez testified that in the summer of 2000, Velez showed two men how to vacuum seal the drugs so they could fit on the Engineer's airplane. He testified that one of these men "had sort of a swarthy or darkish skin" and the other "had perhaps Indian features" and "was called Jose."

According to Velez, the Engineer bought ten more kilograms of cocaine from him and Arbane in early December 2000 and an additional amount in late December 2000, both of which he imported to the United States. This was the final instance when they sold drugs to the Engineer.⁴

Velez testified that towards the end of 2000, Arbane discussed with Velez the possibility of storing drugs for shipment to Mexico or possibly Miami in containers of frozen seafood:

[Arbane] had attempted to speak with a nautical shipping company, and I spoke with another nautical shipping company in Mexico City, so there were two possibilities of bringing the drugs over: One was bringing it among a load of frozen vegetables into the port of Mazatlan, Mexico, and another one was on a ship in a load of seafood and fish coming into the city of Miami.

In one of my trips into Ecuador in the year 2000, [Arbane] took me to show me a storage place for containers, which was a hidden compartment this container had, a frozen container, next to the refrigeration unit, and it was there we were gonna store, put the drugs in that we were gonna bring to Miami. And in that instance only Tony and I would be the only people involved.

Despite the discussion regarding the possibility of importing drugs to the United States by boat, Velez testified that they did not do so at the time:

Q: So, between October 2001 and January of 2002,⁵ you and [Arbane] never had an agreement during that time frame to bring drugs into the United States, did you?

A: No to the United States and not to anywhere else, because we couldn't.

In June 2001, the Engineer was arrested and detained in the United States. Velez testified that the Engineer was the only conduit they used to bring drugs to the United States by plane:

Q: So the only connection you had to bring drugs into New York was the Engineer, correct?

A: Yes, sir.

...

Q: Other than the Engineer, there was nobody else to take it to the United States. Am I correct?

A: There were more people, but we didn't work with anyone else but the Engineer.

Just after the Engineer was arrested, Velez began cooperating with the government as an informant and then began taping conversations between himself and Arbane.⁶ At trial, the government introduced these recorded conversations. Velez testified that during these conversations, Arbane complained that it was costing him a lot of money to pay Lopez-Posada for the storage of the drugs in Ecuador. He also explained that during one of these conversations, he and Arbane were discussing the possibility of importing drugs to the United States via boat. Velez explained that although he told Arbane during the conversation that there was a third party who would receive the drugs once the ship arrived at its final destination and who would receive 30% of their profits, in reality the plan was for U.S. Customs to receive the ship and unload the drugs upon the ship's arrival.

The question before us is whether Velez's testimony suffices to support a conviction for the charged conspiracy to import cocaine into the United States. To support such a conviction, the government must prove beyond a reasonable doubt that there existed an agreement between two or more persons to import narcotics into the United States and that the defendant knowingly and voluntarily participated in that agreement. United States v. Obregon, 893 F.2d 1307, 1311 (11th Cir. 1990).

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