U.S. v. Belardo-Quinones

• Decision Date: 06 November 1995
• Docket Number: No. 94-1261,D,BELARDO-QUINONE,94-1261
• Citation: 71 F.3d 941
• Parties: UNITED STATES, Appellee, v. Pilarefendant-Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 941

71 F.3d 941

UNITED STATES, Appellee, v. Pilar BELARDO-QUINONES, Defendant-Appellant.

No. 94-1261.

United States Court of Appeals First Circuit.

Heard Nov. 6, 1995.

Decided Dec. 13, 1995.

Rafael F. Castro-Lang for appellant.

Jose A. Quiles-Espinosa, Senior Litigation Counsel, with whom Guillermo Gil, Acting United States Attorney, and Nelson Perez-Sosa, Assistant United States Attorney, were on brief for appellee.

Before TORRUELLA, Chief Judge, LYNCH, Circuit Judge, and WATSON, ^* Senior Judge.

WATSON, Senior Judge.

Appellant has challenged his conviction for conspiracy to import marijuana in violation of 21 U.S.C. Secs. 952 and 963. Appellant claims that it was error for the trial court to deny a motion for a bill of particulars, to deny a mistrial after prejudicial testimony, to allow hearsay testimony linking a telephone number used in the conspiracy to appellant's fish market, to deny his Rule 29 motion for acquittal, and finally, to increase his sentencing Guideline level for having a managerial role in the crime. For the following reasons, Appellant's claims are found to be without merit.

Denial of the Bill of Particulars

Appellant was named in Count One of the Indictment. That count described a conspiracy that began on or about October 26, 1991 with the object of importing marijuana from Colombia and ended on November 6, 1991 when the conspirators found out that the boat for which they had been searching had been seized by Venezuelan authorities. Appellant was described as joining the conspiracy on November 2, 1991, when, in a meeting at his fish store, he agreed to supply the boat and crew needed to meet the Colombian boat at a point ten to fifteen miles off the coast of St. Croix, U.S. Virgin Islands. Count I of the indictment ends with an allegation that one of the conspirators made some calls on November 6, 1991, after which he announced to the others that the boat had been seized by Venezuelan authorities. He then called St. Croix to have the others return to Puerto Rico.

Appellant claims that it was error for the District Court to deny his bill of particulars asking for the date on which the Colombian boat was seized by the Venezuelan authorities. According to Appellant that information would have allowed him to present a defense that, for him, the crime of conspiracy to import marijuana had become impossible to achieve because the boat was seized prior to November 2, 1991, before he was alleged to have met with the other conspirators.

According to Appellant, the anticipated delivery date of November 4th means that the boat had to leave Colombia four to five days earlier, in which case its seizure by Venezuelan authorities had to take place before appellant's first contact with the other conspirators at 5:00 P.M. on November 2d.

The government has defended the denial of the bill of particulars on the grounds that the indictment provided sufficient information, that the government did not have the seizure information, that it provided full discovery in any event, and that if the seizure did indeed take place prior to November 2d, the conspirators would most likely have found out about it quickly and would not have continued their efforts to meet the Colombian boat. The government suggests that the seizure took place after the rendezvous failed. The government also asserts that the defendant was not prejudiced by the lack of the information.

To begin with, the denial of a bill of particulars is reversible error only if it is a clear abuse of discretion that causes actual prejudice to a defendant's substantial rights. United States v. Hallock, 941 F.2d 36, 40 (1st Cir.1991). This indictment contained more than enough information to allow defendant to prepare his defense. In fact, it is prolix compared to the indictment under discussion in United States v. Paiva, 892 F.2d 148 (1st Cir.1989), which did not contain any precise time period for the conspiracy and did not even specify the date on which the defendant joined it. Nevertheless this Court held that the temporal specifications of "early 1983" and "the fall of 1983" were sufficient to allow the preparation of a defense without a bill of particulars. A fortiori the temporal details in this indictment were sufficient to allow the defendant to present a defense that the conspiracy had ended before he came into the picture. It is noteworthy that the record shows no attempt by defendant to pursue alternative means of obtaining information about the date of the boat seizure.

Even if we go past the correctness of denying the elaboration of an adequate indictment, there is another insurmountable obstacle to the request for information about the date of seizure.

Denial of this bill of particulars as to the time and location of the seizure could not possibly be an abuse of discretion because it could not be the basis of a legal defense to the charge of conspiracy. It has been held that "... a culpable conspiracy may exist even though, because of the misapprehension of the conspirators as to certain facts, the substantive crime which is the object of the conspiracy may be impossible to commit." United States v. Waldron, 590 F.2d 33, 34 (1st Cir.1979). In that case the conspirators thought that they were working to import and sell valuable stolen paintings. In reality, the only painting they delivered to Boston was a forgery worth less than the $5000 minimum of the provision making it unlawful to knowingly sell stolen goods.

Appellant's argument resembles the one made by appellants in United States v. Giry, 818 F.2d 120 (1st Cir.1987) that because the persons who were to import the cocaine were agents of the Drug Enforcement Agency [DEA] the importation could never actually occur. The court rejected "... the faulty assumption that an expressed conspiratorial objective is negated by its factual impossibility." 818 F.2d at 126. Here appellant joined in a conspiracy and performed an essential role in obtaining a boat and crew needed to accomplish the crime. Even if intervening events had made the accomplishment of the criminal purpose impossible all the elements of a criminal conspiracy were present. There is no basis for making a distinction between those who start a conspiracy that is impossible from the beginning and one who joins in a conspiracy that has become impossible due to intervening events unknown to the conspirators.

Appellant has cited three cases for the proposition that a conspiracy ends when its purpose is thwarted, United States v. Roshko, 969 F.2d 1, 8 (2d Cir.1992); United States v. Serrano, 870 F.2d 1, 8 (1st Cir.1989); and Krulewitch v. United States, 336 U.S. 440, 443-44, 69 S.Ct. 716, 718-19, 93 L.Ed. 790 (1949). This proposition can only be true if the conduct of the conspirators is no longer directed towards accomplishment of the goal of the conspiracy, impossible or not. In the cases cited by appellant it was held that the conspiracy had ended either because its goal had been reached or because the conspirators had given up. There was no continuation of acts designed to further the conspiracy.

In United States v. Roshko, 969 F.2d 1, 8 (2d Cir.1992), appellant's conspiracy was held to have ended successfully when he obtained a green card by means of a sham marriage to a first "wife." The government, seeking to justify indicting him after the five year statute of limitations had run on that crime, had argued that the conspiracy continued through the later points in time when he divorced that first wife and married another woman. The court held that it was the obtaining of a green card that was the object of the conspiracy and the conspiracy terminated when that was accomplished.

In United States v. Serrano, 870 F.2d 1, 8 (1st Cir.1989) and Krulewitch v. United States, 336 U.S. 440, 443-44, 69 S.Ct. 716, 718-19, 93 L.Ed. 790 (1949) the issue of the duration of a conspiracy arose in...