U.S. v. Arbelaez

• Decision Date: 10 November 1983
• Docket Number: Nos. 82-1084,82-1115 and 82-1116,82-1085,s. 82-1084
• Citation: 719 F.2d 1453
• Parties: 14 Fed. R. Evid. Serv. 973 UNITED STATES of America, Plaintiff-Appellee, v. Gilberto ARBELAEZ, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Ralph ROJAS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Eduardo GARRIDO PONCE de LEON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Eduardo ARCILA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1453

719 F.2d 1453

14 Fed. R. Evid. Serv. 973

UNITED STATES of America, Plaintiff-Appellee, v. Gilberto ARBELAEZ, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Ralph ROJAS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Eduardo GARRIDO PONCE de LEON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Eduardo ARCILA, Defendant-Appellant.

Nos. 82-1084, 82-1085, 82-1115 and 82-1116.

United States Court of Appeals, Ninth Circuit.

Argued May 11, 1983.

Submitted June 14, 1983.

Decided Nov. 10, 1983.

Mervyn Hamburg, Washington, D.C., for plaintiff-appellee.

Arthur Addess, Arthur W. Tifford, Miami, Fla., Jeffrey J. Gale, Sacramento, Cal., Edward McHale, Coral Gables, Fla., for defendants-appellants.

Appeal from the United States District Court for the Eastern District of California.

Before PECK, ^* FLETCHER, and PREGERSON, Circuit Judges.

PREGERSON, Circuit Judge:

Appellants Gilberto Arbelaez, Ralph Rojas, Eduardo Garrido Ponce de Leon (Garrido), and Eduardo Arcila appeal their convictions for cocaine related offenses. After a joint trial, the jury convicted all four appellants, Arbelaez, Rojas, Garrido, and Arcila, of conspiracy to possess cocaine with intent to distribute. Arbelaez, Garrido, and Arcila were also convicted of substantive counts relating to the distribution of cocaine. Rojas was acquitted of the substantive counts against him. Each appeals. We affirm.

The evidence, viewed in a light most favorable to the government, showed that in late October or early November 1980, Alfonso Beron flew to Colombia to negotiate with Carlos Arcila for 1 1/2 kilograms of cocaine to be imported into the United States. Beron succeeded in importing the cocaine, began selling it through middleman James Shipman, and then returned to Columbia to pay Carlos Arcila. During this second trip, Arcila told Beron that in future transactions instead of flying to Colombia he could deal in Miami with Arcila's brother, appellant Eduardo Arcila.

While at the airport in Cali, Colombia, awaiting a return flight to Miami, Beron encountered appellant Eduardo Garrido, a previous acquaintance, and the two flew back to Miami together. Garrido told Beron that he knew of Beron's cocaine dealings with the Arcilas and invited Beron to deal with him. ¹ Thereafter, Beron and Garrido negotiated the sale of five kilograms of cocaine. Beron was told by Garrido that his supplier was appellant Ralph Rojas. Garrido requested that Beron pay a $100,000 advance to be used to reimburse Rojas for transportation costs. Although Beron refused to advance that sum, the sale was consummated nevertheless.

Soon after negotiating the deal with Garrido, Beron and Shipman met with Eduardo Arcila in Miami and arranged purchases of cocaine from him. Eduardo Arcila promised that he would not pressure Beron for payments as Garrido had repeatedly done, so long as Beron paid weekly. Arcila's price for cocaine was $2,000 less per kilogram than Garrido's.

When Eduardo Arcila temporarily lost his supply of cocaine, Beron dealt again with Garrido. As part of these transactions, Beron gave Garrido advances to pay Rojas for transporting the cocaine from Colombia to Miami.

Beron testified that on the evening of February 13, 1981, he went to Garrido's apartment in Miami where he met Rojas and appellant Gilberto Arbelaez. In the presence of Rojas, Beron handed Garrido $250,000 in a bag. Garrido thanked Beron, but reminded him that a balance was still due. Garrido placed the money in a suitcase. Rojas then gave Garrido the keys to Rojas' car and directed him to put the money in the vehicle. In the presence of Rojas and Beron, Garrido told Arbelaez that Beron had just brought him $250,000 to pay for cocaine purchases.

That same evening, Garrido said that he wanted to show Beron something, but they would have to take a ride to see it. At about 11:00 p.m., Rojas, Garrido, Beron, and Arbelaez drove in a four-door sedan to a warehouse. The warehouse door was locked. A guard approached the car, looked inside, and returned to the warehouse to unlock it. The door to the warehouse opened and the car drove inside the structure. Garrido and Beron got out of the car. Rojas and Arbelaez remained in the vehicle. While in the warehouse, Garrido and Beron viewed numerous duffle bags. At that time Garrido told Beron that the bags contained more than 2,000 kilograms of cocaine. Garrido opened two of the bags and Beron saw cocaine. Some of it was packed in soccer-ball-shaped containers, similar to those Beron saw at Garrido's apartment, and some cocaine was in brick-type containers similar to those Beron obtained from Eduardo Arcila. Garrido and Beron then returned to the car and rejoined the others. While the four were in the vehicle returning to Garrido's apartment, Garrido told Beron that he could earn millions of dollars from the sale of cocaine.

Garrido continued to supply Beron with cocaine obtained from Arbelaez and Rojas. At times Arbelaez was present at meetings between Beron and Garrido. At one meeting, Arbelaez and Garrido both proposed that Arbelaez would supply Beron with fifteen kilograms of cocaine weekly if Shipman was not part of the deal. When Beron refused to exclude Shipman, Arbelaez withdrew his offer. The day after this meeting, Arbelaez asked Beron to work with him, but without Garrido's knowledge.

Several days later, Beron and his girlfriend Tina Brown quarreled and she summoned the police to Beron's apartment. Beron quickly informed Shipman of Brown's action and Beron and Shipman moved to a hotel. While at the hotel, Beron continued to buy and sell cocaine. He obtained three kilograms of cocaine from Arbelaez and flew to Sacramento to sell them to customers.

The following day, March 13, Beron was arrested. At the time of his arrest, Drug Enforcement Administration (DEA) agents seized two kilograms of cocaine and Beron's ledger, in which he recorded receipts and payments. Shortly after his arrest, Beron agreed to cooperate with law enforcement authorities.

For the next two months, Beron made telephone calls--recorded and monitored by DEA agents--to Arbelaez, Garrido, and others not parties to this appeal. Under surveillance Beron flew to Miami where he met Garrido, Arbelaez, and Arcila. Still under surveillance, Beron flew to California to pick up $100,000 from Shipman. Although the $100,000 was from the sale of Garrido's cocaine, Beron paid the money to Arbelaez as partial payment for cocaine obtained from him. At the request of DEA agents, Beron asked Garrido to come to Sacramento and collect money owed him. Once in Sacramento, he was arrested. Arcila then met with Beron in Anaheim to collect money he was owed and he was arrested. Subsequently, Arbelaez and Rojas were arrested in Miami.

Appellants were charged with conspiracy to possess cocaine with intent to distribute, possession of cocaine with intent to distribute and distribution of cocaine, and unlawful use of a telephone to facilitate a conspiracy to possess cocaine with intent to distribute the substance, in violation of 21 U.S.C. Secs. 841(a)(1), 843(b) & 846 (1976). Following a jury trial, all appellants were convicted of conspiracy to possess cocaine with intent to distribute. Arbelaez, Garrido, and Arcila were also convicted of possession of cocaine with intent to distribute and distribution of cocaine. In addition, Garrido was convicted on one telephone count.

We now address a variety of issues raised by appellants in this consolidated appeal.

(1) Was the evidence sufficient to convict defendants of conspiracy and related substantive charges?

(a) Conspiracy

Appellants contend that the government did not prove a single overall conspiracy as set forth in the indictment, but instead proved multiple conspiracies resulting in a variance between the terms of the indictment and the proof at trial. In the instant case, our role is to view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found a single conspiracy beyond a reasonable doubt. ² United States v. Fleishman, 684 F.2d 1329, 1340 (9th Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 464, 74 L.Ed.2d 614 (1982).

To establish the existence of a single conspiracy, as compared to multiple conspiracies, the basic "test is whether there was 'one overall agreement' to perform various functions to achieve the objectives of the conspiracy." United States v. Zemek, 634 F.2d 1159, 1167 (9th Cir.1980), cert. denied, 452 U.S. 905, 101 S.Ct. 1031, 69 L.Ed.2d 406 and 450 U.S. 916, 985, 101 S.Ct. 1359, 1525, 67 L.Ed.2d 341, 821 (1981). Moreover, the "general test also comprehends the existence of subgroups or subagreements." Zemek, 634 F.2d at 1167. We have also said that "[t]he evidence need not be such that it excludes every hypothesis but that of a single conspiracy; rather it is enough that the evidence adequately support a finding that a single conspiracy exists." United States v. Kenny, 645 F.2d 1323, 1335 (9th Cir.), cert. denied, 452 U.S. 920, 101 S.Ct. 3059, 69 L.Ed.2d 425 (1981), cited in United States v. Mastelotto, 717 F.2d 1238, 1246 (9th Cir.1983) (petition for rehearing pending).

To determine whether the evidence supports the existence of one overall criminal venture, relevant areas of inquiry include "the nature of the scheme; the identity of the participants; the quality, frequency, and duration of each conspirator's transactions; and the commonality of times and goals." Zemek, 634 F.2d at 1168; see, e.g., United States v. Baxter, 492 F.2d 150, 158 (9th Cir.1973), cert. denied, 416 U.S. 940, 94 S.Ct. 1945, 40 L.Ed.2d 292 (1974) (jury may find one overall scheme if each defendant "knew or had reason to know, that other retailers were involved ... in a broad project for the smuggling, distribution and retail sale of narcotics, and had reason to believe that their own benefits derived from the operation...