U.S. v. Baresh

• Decision Date: 22 May 1986
• Docket Number: No. 85-2160,85-2160
• Citation: 790 F.2d 392
• Parties: 20 Fed. R. Evid. Serv. 1035 UNITED STATES of America, Plaintiff-Appellee, v. James D. BARESH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 392

790 F.2d 392

20 Fed. R. Evid. Serv. 1035

UNITED STATES of America, Plaintiff-Appellee, v. James D. BARESH, Defendant-Appellant.

No. 85-2160.

United States Court of Appeals Fifth Circuit.

May 22, 1986.

Roberto J. Yzaguirre, McAllen, Tex., for defendant-appellant.

Henry K. Oncken, U.S. Atty., Susan L. Yarbrough, James R. Gough, Asst. U.S. Attys., Houston, Tex., Mervyn Hamburg, Atty., Appellate Section, Criminal Div., U.S. Dept. of Justice, Thomas E. Booth, Atty., Dept. of Justice, Washington, D.C., for plaintiff-appellee.

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

Before RANDALL and GARWOOD, Circuit Judges, and SCHWARTZ ^*, District Judge.

CHARLES SCHWARTZ, Jr., District Judge.

Appellant James Baresh was charged with various narcotics laws violations, in nineteen counts (counts two through twenty) of a twenty-two count indictment. Also indicted with Baresh were five co-defendants, Jorge Ubeda, Giraldo Alvarez, William Satterwhite, Jorge Vasquez and Ben Snyder. Prior to trial, co-defendant Alvarez was allowed to plead to one count of the indictment, and co-defendant Ubeda became a fugitive and was not present for the trial. At the close of the Government's case in chief, co-defendant William Satterwhite was granted a mistrial and eleven counts of the indictment ¹ were dismissed as to Baresh.

Trial continued as to Appellant Baresh and the two remaining co-defendants. The jury acquitted the co-defendants but convicted Baresh of conspiracy to possess with intent to distribute marijuana; conspiracy to possess with intent to distribute in excess of 1,000 pounds of marijuana; conspiracy to import marijuana; possession with intent to distribute marijuana; three counts of possession with intent to distribute in excess of 1,000 pounds of marijuana; and importation of marijuana, all in violation of 21 U.S.C. Secs. 841(a)(1), 841(b)(6), 846, 952, 960 and 963 and 18 U.S.C. Sec. 2. See Rec. Vol. 1, p. 68, Doc. No. 207 (Jury verdict). From such convictions Baresh appeals.

The evidence at trial tended to establish that beginning sometime in 1979, Jorge Ubeda was engaged in an extensive marijuana importation and distribution scheme. He expanded his operation from small scale distribution to importing boat loads of marijuana Ubeda employed co-defendant Jorge Vasquez in connection with his marijuana importing business and, when he purchased Captain Wick's, made him his manager to handle the loading and unloading of marijuana. Caesar Quiroga was employed to provide a crew of workmen for transporting marijuana from the dock to Ubeda's various warehouses, as were certain truck drivers, including Larry Smith, who allowed Ubeda to use a warehouse Smith controlled and from which the Government seized several tons of marijuana.

on large ships from Colombia. These loads would be transshipped onto smaller boats off the Coast of Mexico and on carried to Houston, Texas. To facilitate operations, Ubeda rented warehouses through his cohorts and bought a seafood establishment, Captain Wick's, with docking facilities to serve as a front for unloading marijuana shipments. Ubeda was also involved in the insulation business and worked for B & S Insulation, a company owned by Appellant Baresh (also known as "Possum"). Ubeda eventually acquired his own insulation business, U.S. Cellulose, which he sold just prior to purchasing Captain Wick's. When law enforcement officers caused Captain Wick's to close, Ubeda returned to work for Baresh.

Early in 1979, Ubeda also recruited Kevin Ward to distribute marijuana for him. Ward sold marijuana regularly to local drug dealers, including Lee Lane and John Hansen. Beginning in spring 1979 and the following months, Ward and Ubeda travelled to Florida about six times to acquire marijuana and thereafter transported the newly purchased marijuana back to Houston in the trunk of their car and stored it at Ward's apartment at the conclusion of the trips.

Baresh's B & S Insulation Company maintained several warehouses in the Houston area. In 1979, upon Ubeda's instructions, Ward delivered between 200 and 250 pounds of marijuana to Baresh's warehouse on Ashcroft Street. When Ward arrived at the warehouse, he was admitted by Nancy Best, Baresh's secretary, since Baresh was not present. Ward unloaded the marijuana against a back wall of the warehouse and covered it with insulation material. Ubeda had told Ward's wife that as long as he "had B & S Insulation, he had a place to store [marijuana]," although by October 1979, Ubeda asked Ward to rent some additional warehouses because he was dissatisfied with the small sizes of existing warehouses.

In January 1980, Ubeda hired Alan (Jones) Williams and Ben Snyder to bring in marijuana from Mexico. On January 4-5, 1980, Williams, Snyder and four crewmembers left from Captain Wick's on the DIXIE DANDY and a few days later obtained marijuana from a Colombian ship at the Alcaran Reef near Cancun and Campeche, Mexico. When the DIXIE DANDY returned to Captain Wick's, Ubeda met and paid the crew.

In February 1980, Ward leased a warehouse on Pinemont Road in Houston and one week later assisted offloading a boat load of marijuana at Captain Wick's and transferring it to the warehouse. The following day Ward saw this estimated "thousands of pounds" of marijuana at the warehouse. Ubeda told Ward that the marijuana came from Colombia.

Also in early 1980, Ricky Black, a Houston drug dealer, delivered fifty pounds of marijuana to Lee Lane, another Houston drug dealer, who had purchased drugs from Ward. At Lane's direction, Black and Lane then took the marijuana to Baresh's Jasmine Street warehouse in the Bellaire area of Houston. There, Baresh met Lane and Black, and at his instruction, Lane and Black unloaded the marijuana and covered it with insulation. Black returned to Baresh's warehouse in April 1980, purchased directly from Baresh 100 pounds of Colombian marijuana in two bales at $310.00 per pound, and loaded the marijuana into the trunk of his car, with Baresh's assistance. Black made several more purchases of marijuana from Baresh's warehouse between April 1980 and March 1981, on which occasions Black drove his car to Baresh's warehouse, negotiated a price and thereafter Sometime before June 1980, Ubeda directed Ward to obtain marijuana from Baresh's Jasmine Street warehouse, and when Ward arrived there, Baresh personally showed him where the marijuana was stored. About a month and a half later, Ward and Lane went by car to Baresh's warehouse and obtained about two bales of marijuana there hidden in some storage racks. However, Ward did not see Baresh at the warehouse on this occasion.

loaded his car with marijuana stored in Baresh's warehouse. On some occasions, Black paid Baresh money and on others he exchanged about 100 pounds of his domestic marijuana for 35 to 45 pounds of Baresh's Colombian marijuana.

In late summer or early fall 1980, Ward attempted to purchase about 500 pounds of marijuana from Baresh at his warehouse. During their discussion, Baresh told Ward that he, Baresh, could obtain the marijuana as his last drug deal involved over 3,000 pounds of marijuana. When Baresh opened the doors to the warehouse, they saw a third person and this terminated the proposed transaction. Baresh asked Ward to leave.

In fall 1980, Ubeda recruited Larry Smith to assist transporting marijuana to various warehouses, and Smith ultimately participated in several marijuana deals of approximately 30,000 pounds each. Thus, in early December 1980, Smith leased a warehouse to store marijuana, and sometime after December 2, 1980, Smith transported marijuana from Captain Wick's to this warehouse. On the day following this delivery, he returned to the warehouse, where he saw several people weighing bales of marijuana on another truck. Sometime in the next three weeks, Ubeda compensated Smith for his delivery services by sending him to Baresh's warehouse to receive a bale of marijuana. Smith was met there by Baresh, who took a bale of marijuana from a red seafood truck in the back of the warehouse and gave it to Smith, who in turn placed it in his car and left the premises.

Around December 22, 1980, Ubeda asked Smith to drive another truckload of marijuana from Captain Wick's to a warehouse. On this occasion, Smith, Ubeda, and Ubeda's brother Domingo met at Baresh's Jasmine Street warehouse before leaving for Captain Wick's to offload the marijuana and transport it in Ubeda's truck back to Baresh's warehouse. The following day, Smith returned to Baresh's warehouse and was told by him that the marijuana in question weighed about 30,000 pounds and that Baresh did not want it stored at his warehouse because he did not want "his father or anybody" to discover it there. That evening, Ubeda, his brother and two Cubans moved the marijuana from Baresh's warehouse to another warehouse on Old Beaumont Highway.

In early 1981, Smith helped Ubeda transport marijuana off-loaded from a boat at Captain Wick's to another Ubeda warehouse at 3801 Trail Mobile near the Old Beaumont Highway.

In February 1981, Williams and Snyder obtained marijuana for Ubeda from a boat located off the coast of Galveston. In March 1981, Black purchased between 50 and 100 pounds of Colombian marijuana at $290.00 per pound from Baresh at Baresh's warehouse. When Black first appeared at Baresh's warehouse, Baresh asked Black whether Black had the money, and when he replied that he did, Baresh opened the door to the warehouse and allowed Black to load several bales of marijuana into Black's car. The bales of marijuana were wrapped in foreign newspapers. On March 20-21, 1981, DEA Agents investigating an unrelated group of marijuana conspirators arrested Smith at one of the warehouses. Smith subsequently agreed to cooperate with the authorities and his cooperation led to the investigation of Ubeda and Baresh.

Some of Baresh's social and business associates...