U.S. v. Arias, 80-5212
| Decision Date | 16 March 1981 |
| Docket Number | No. 80-5212,80-5212 |
| Citation | 639 F.2d 1183 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Eduardo ARIAS, Mario Reytan and Angel Osvaldo Minagorri, Jr., Defendants-Appellants. Summary Calendar. . Unit B |
| Court | U.S. Court of Appeals — Fifth Circuit |
Scott T. Eber, Miami, Fla., for Arias.
H. Frank Rubio, Miami, Fla., for Reytan and Minagorri.
Atlee W. Wampler, III, U. S. Atty., Paul G. Hyman, Jr., Linda Collins Hertz, Asst. U. S. Attys., Miami, Fla., for United States.
Appeals from the United States District Court for the Southern District of Florida.
Before RONEY, FRANK M. JOHNSON, Jr. and HENDERSON, Circuit Judges.
Appellants Eduardo Arias, Mario Reytan and Angel O. Minagorri, Jr., along with another defendant, were charged with conspiracy to distribute cocaine in violation of 21 U.S.C.A. § 846 (Count I), possession with intent to distribute cocaine (Counts II & IV) and distribution of cocaine (Counts III & V) in violation of 21 U.S.C.A. § 841(a)(1) and 18 U.S.C.A. § 2. Additionally, Arias was charged with violating 21 U.S.C.A. § 843(b) by using a telephone in the commission of a felony (Counts VI & VII); Minagorri was also charged in two counts with using a telephone in the commission of a felony (Counts X & XI). A jury found Minagorri guilty of Counts I-V, X and XI; Reytan was found guilty of Counts I, IV and V. The jury found Arias guilty of Counts VI and VII but acquitted him of all the other counts. Appellants Minagorri and Reytan argue on appeal that the Government failed to prove beyond a reasonable doubt that the substance seized from them during their arrest was the controlled substance L-cocaine. Appellant Arias contends that his conviction for using a telephone in furtherance of a particular conspiracy is impermissibly inconsistent with his acquittal of all charges concerning the underlying felony. Because we conclude that these contentions are without merit we affirm.
During appellants' trial, the Government offered the expert testimony of Ms. Ivette Vallejo, a forensic chemist with the Drug Enforcement Administration (DEA), who analyzed the substances seized from Minagorri and Reytan. She described the four tests 1 she used in arriving at her conclusion that the substances were L-cocaine. 2 On cross examination Ms. Vallejo admitted that she had not actually observed all of the other seven possible isomers, but that scientific theory predicts that the cocaine isomers have different chemical arrangements than L-cocaine.
Appellants are not challenging Ms. Vallejo's qualifications to testify as an expert, rather they contend that the data derived from the tests she utilized is unreliable since test comparisons were performed on only four of the eight known isomers of cocaine. 3 In other words, they are arguing that because Ms. Vallejo did not directly compare the seized substance with each of the known isomers of cocaine, her opinion that the seized substance was L-cocaine was based on unproven and untested facts; consequently, the Government failed to prove beyond a reasonable doubt that the substances seized were illegal under Schedule II of 21 U.S.C.A. § 812(c)(II)(a)(4).
It is clear that we must consider the evidence and all reasonable inferences therefrom in a manner most favorable to the Government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 454, 86 L.Ed. 680 (1942). Moreover, if the jury could "reasonably, logically and legally infer from the evidence presented that the L-cocaine identification was established beyond a reasonable doubt", the Government has met its burden. United States v. Ortiz, supra, 610 F.2d at 282. Ms. Vallejo's testimony reveals that her conclusion was supported by the four tests conducted along with accepted scientific theory of chemical distinctions between cocaine isomers that is reasonably relied on by experts in her field. See United States v. Rosado-Fernandez, 614 F.2d 50, 54 (5th Cir. 1980) (); United States v. Ortiz, supra, 610 F.2d at 282 (); see also Fed.R.Evid. 703. Her opinion constituted substantial evidence on which the jury could reasonably rely in reaching its verdict. We hold that the evidence introduced by the Government sufficiently established the L-cocaine identification beyond a reasonable doubt; accordingly, we affirm the convictions of Minagorri and Reytan.
Appellant Arias relies on a Third Circuit case, United States v. Hannah, 584 F.2d 27, 29 (3d Cir. 1978), to support his contention that his conviction for using a telephone in the commission, causation or facilitation of an act...
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