U.S. v. Benavente Gomez

• Decision Date: 10 September 1990
• Docket Number: Nos. 89-1291,89-1459 and 90-1342,s. 89-1291
• Parties: 31 Fed. R. Evid. Serv. 1502 UNITED STATES, Appellee, v. Pedro BENAVENTE GOMEZ, Defendant, Appellant. UNITED STATES, Appellee, v. Guillermo CERDA RODRIGUEZ, Defendant, Appellant. UNITED STATES, v. Pedro BENAVENTE GOMEZ, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 378

921 F.2d 378

31 Fed. R. Evid. Serv. 1502

UNITED STATES, Appellee, v. Pedro BENAVENTE GOMEZ, Defendant, Appellant.

UNITED STATES, Appellee, v. Guillermo CERDA RODRIGUEZ, Defendant, Appellant.

UNITED STATES, v. Pedro BENAVENTE GOMEZ, Defendant, Appellant.

Nos. 89-1291, 89-1459 and 90-1342.

United States Court of Appeals First Circuit.

Heard Sept. 10, 1990.

Decided Dec. 20, 1990.

Stephen M. Klimacek with whom Adorno & Zeder and Fred A. Schwartz, Coconut Grove, Fla., were on brief for defendant, appellant Guillermo Cerda Rodriguez.

Miriam Ramos-Grateroles, Bayamon, P.R., by appointment of the Court, for defendant, appellant Pedro Pablo Benavente-Gomez.

Juan A. Pedrosa with whom Daniel F. Lopez-Romo, U.S. Atty. and Jose A. Quiles, Hato Rey, P.R., Asst. U.S. Atty., were on brief for the U.S.

Before CAMPBELL and CYR, Circuit Judges, and COFFIN, Senior Circuit Judge.

COFFIN, Senior Circuit Judge.

Pedro Pablo Benavente Gomez and Guillermo Cerda Rodriguez were convicted of conspiring to import nearly 5000 grams of cocaine into the United States in violation of 21 U.S.C. Sec. 963. Cerda also was convicted on the underlying crimes of importation of cocaine and use of a communication facility to import cocaine. See 21 U.S.C. Secs. 952(a), 843(b). On appeal, defendant Benavente claims there was insufficient evidence to support the verdict against him. He also argues that the district court erred in denying him a new trial based on newly discovered evidence. Defendant Cerda argues that certain evidence was improperly admitted against him. We reject each of these arguments and affirm the convictions.

I. FACTS

On June 20, 1988, Bobby Joel Sivils ¹ entered Puerto Rico on his way to Miami from Venezuela. He was detained at customs and investigation revealed that he was carrying substantial amounts of cocaine concealed in a briefcase, two portfolios and a book. Sivils agreed to cooperate with United States Drug Enforcement Agency ("DEA") agents.

In the presence of the agents, Sivils placed four monitored telephone calls to defendant Cerda in Miami during the evening of June 20 and the following morning. In the first call, Sivils spoke with Cerda's girlfriend, Angie, who told him to call Cerda when he arrived in Miami and they would pick him up. Sivils continued to try to reach Cerda and finally spoke with him at 9:00 the following morning. Sivils informed Cerda that he had received the "computer parts" from "Ruth" and that he planned to catch the 1:00 or 4:00 flight out of Puerto Rico. He told Cerda he would call him when he arrived. Cerda agreed.

Sivils arrived in Miami on the morning of June 22 and went to a hotel. He called Cerda several times between 10:15 and 11:30. During these calls, Cerda told Sivils that he had received a call from Sivils' girlfriend, who told him that Sivils had run into some problem in Puerto Rico. Sivils assured Cerda that he was in no trouble. Cerda told Sivils he would come over.

Shortly thereafter, around noon, Sivils received a call from Angie, asking him to come down to the lobby. When he arrived at the lobby, Sivils met not Cerda, but Angie and defendant Benavente. After a few minutes, Sivils returned to his room and called Cerda. Cerda told him he was taking a shower and that he would join them shortly. Sivils returned downstairs to Angie and Benavente. The three conversed for over three hours in the bar. Sivils testified that, during the course of the conversation, Benavente and Angie felt his legs and that he assumed they were checking to see if he was carrying a transmitter.

Sometime after 3:00, Benavente and Sivils went up to Sivils' room to call Cerda. Benavente gave Cerda's business telephone number to Sivils. Not reaching Cerda, Sivils left a message and Cerda returned the call in a few minutes, suggesting that they meet at his office. Benavente and Sivils returned to the bar, where Sivils told Angie and Benavente that he intended to stay at the hotel. Angie and Benavente then left the hotel. Surveillance agents observed them travel to Cerda's place of business, where they met with Cerda for about fifteen minutes.

At about 5:00, Cerda called Sivils and told him he was coming by. At approximately 6:30, Sivils called Cerda's apartment. Benavente answered. Cerda came to the phone and told Sivils that he would meet Sivils in the lobby at 7:00. Benavente arrived at 7:00 and escorted Sivils to a car in which Cerda was waiting. They drove to Cerda's apartment, but stayed in the car. Cerda and Sivils talked and, during the conversation, Cerda patted Sivils in the chest area. He felt the thin transmitter in Sivils' coat pocket and asked if Sivils was wearing a pacemaker; he asked Sivils if he had any "problems." Sivils told him that the lump in his breast pocket was money. Cerda invited Sivils to stay in Cerda's apartment overnight with Benavente. Sivils declined. Sivils asked Cerda for money. Throughout the entire conversation, Benavente was in the back seat of the car.

Cerda got out of the car at his apartment, and Benavente drove Sivils back to the hotel at about 7:30. An hour later, Sivils once more called Cerda and told him he was leaving town soon and asked if he could meet with Cerda. Cerda again asked Sivils to spend the night and Sivils refused. A few minutes later Sivils called Cerda again, and Cerda agreed to send Benavente to drive Sivils to the airport.

Shortly after this last call, both Cerda and Benavente, together with another man, left Cerda's apartment. Benavente got into one vehicle and Cerda and the other man got into a separate vehicle. Both cars drove to the hotel, Benavente's car leading. Benavente pulled up in front of the hotel, but Cerda's car parked well back from the entrance. Benavente got out of the car to meet Sivils. He opened the trunk and helped Sivils put his two bags into it. Sivils showed Benavente the portfolios and book that were inside the briefcase. Benavente nodded, but said nothing. Benavente and Sivils got into the car, and both cars were stopped by agents as they began to pull out. The defendants were arrested.

II. SUFFICIENCY OF THE EVIDENCE

Defendant Benavente argues that the evidence was insufficient as a matter of law to support the jury's finding that he conspired to import cocaine. He contends that there was no direct evidence linking him to the cocaine conspiracy and that he was convicted solely on the basis of his presence during some parts of the transaction. He therefore argues that the district court erred in denying his motion for judgment of acquittal made in accordance with Fed.R.Crim.P. 29.

In reviewing the sufficiency of the evidence, we must consider the evidence "in the light most favorable to the government, drawing all legitimate inferences and resolving all credibility determinations in favor of the verdict." United States v. Angiulo, 897 F.2d 1169, 1197 (1st Cir.1990). We must then determine whether a rational jury could have found the essential elements of the offense beyond a reasonable doubt. United States v. Rivera-Santiago, 872 F.2d 1073, 1078-79 (1st Cir.1989).

To prove conspiracy, the government must show the existence of a conspiracy and the defendant's knowing and voluntary participation in it. United States v. Aponte-Suarez, 905 F.2d 483, 489 (1st Cir.1990). "More specifically, to establish that a defendant belonged to and participated in a conspiracy, the government must prove two kinds of intent: 'intent to agree and intent to commit the substantive offense.' " United States v. Gomez-Pabon, 911 F.2d 847, 852 (1st Cir.1990) (quoting Rivera-Santiago, 872 F.2d at 1079). The government need not provide direct evidence of intent. "The agreement, whether tacit or express, may be proven by circumstantial as well as express evidence." Rivera-Santiago, 872 F.2d at 1079 (citing Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942)). Nor must a defendant know of all the details of the plan or participate in all of its objectives. Aponte-Suarez, 905 F.2d at 490. However, mere association with conspirators or presence at the scene of the crime does not establish conspiracy. Gomez-Pabon, 911 F.2d at 853; United States v. Hyson, 721 F.2d 856, 862 (1st Cir.1983).

Applying these standards, we find that there was sufficient evidence to support defendant Benavente's conviction. Benavente was present at three significant junctures of the planned transaction between Cerda and Sivils. Benavente, together with Angie, came to the hotel to meet Sivils after Cerda had told Sivils that Cerda himself would come. Benavente and Angie talked with Sivils for three hours, and Sivils testified that during this time Benavente felt his legs; Sivils stated that he assumed from the way Angie and Benavente were acting, together with the touching, that they were trying to discover if he was fitted with a recording device. Benavente went with Sivils to Sivils' room to call Cerda at work and provided the phone number. Shortly thereafter, Benavente and Angie left the hotel and met with Cerda at work. Cerda again called Sivils and told him he would meet him in the lobby. Once again, it was Benavente who arrived and showed Sivils to the car where Cerda was waiting. Benavente waited in the rear seat of the car while Cerda "frisked" Sivils and asked if he was wearing a pacemaker and while Sivils asked Cerda for money. The next day, Benavente again returned to the hotel to take Sivils to the airport. When placing his briefcase in the trunk, Sivils showed Benavente the portfolios and the book that contained the concealed cocaine and Benavente nodded.

To be sure, other evidence discounted the possibility of Benavente's playing a role in the drug conspiracy. It was undisputed that Benavente and Sivils had known one another for seventeen years through business dealings in Nicaragua. In addition, the cocaine consistently was referred to as "computer parts" or "computer printouts" in all of the...