U.S. v. Betancourt

• Citation: 838 F.2d 168
• Decision Date: 01 February 1988
• Docket Number: Nos. 85-5612,s. 85-5612
• Parties: 24 Fed. R. Evid. Serv. 744 UNITED STATES of America, Plaintiff-Appellee, v. Marco BETANCOURT, et al., Defendants-Appellants. to 85-5615 and 85-5679.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 168

838 F.2d 168

24 Fed. R. Evid. Serv. 744

UNITED STATES of America, Plaintiff-Appellee, v. Marco BETANCOURT, et al., Defendants-Appellants.

Nos. 85-5612 to 85-5615 and 85-5679.

United States Court of Appeals, Sixth Circuit.

Argued June 5, 1986.

Decided Feb. 1, 1988.

Rehearing Denied in Nos. 85-5679 March 24, 1988.

Paul M. Rashkind, Bailey, Gerstein, Rashkind, Dresnick, F. Lee Bailey (argued), Miami, Fla., for Betancourt.

Louis DeFalaise, U.S. Atty., Lexington, Ky., James Zerhusen (argued), Robert Rawlins, Covington, Ky., for U.S.

Wilbur M. Zevely (Court-appointed), Florence, Ky., for Cubillos.

H. Fred Hoefle (Court-appointed), Cincinnati, Ohio, for Zapata.

David R. Irvin (argued), Bulleit, Kinkead, Irvin, Reinhardt, Lexington, Ky., for Santibanez.

Thomas F. Almon (argued), Miami, Fla., for Cabrera.

Before KEITH and BOGGS, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.

BOGGS, Circuit Judge.

This case arose out of a complex laundering scheme for money derived from Colombian drug transactions. The scheme involved the transfer of cash to a courier in Miami. The courier would take the cash to Northern Kentucky, deposit it in banks and draw checks upon it for use of the funds in Colombia. Five defendants were tried in the United States District Court for the Eastern District of Kentucky in 1985 for violating 21 U.S.C. Sec. 846 by conspiring to distribute, to possess with intent to distribute, and to aid and abet others in the distribution of cocaine. Each defendant was also charged with violation of the Travel Act, 18 U.S.C. Sec. 1952. All were convicted. All defendants now appeal, raising a variety of objections, primarily concerning the adequacy of the evidence to connect each of the defendants to the conspiracy. We have carefully considered all of the points raised by the defendants below, and we affirm the district court's judgment of conviction entered on a jury verdict.

I

The existence of an underlying conspiracy or conspiracies is not disputed by any of the defendants. Luis Pinto, a Colombian educated in the United States, laundered up to $25,000,000 in American currency for Gonzalo Rodriguez from 1981 to 1983. He would obtain cash in Miami, deposit it in various accounts in Northern Kentucky in transactions of less than $10,000 to evade Federal reporting requirements, and then transmit bank drafts or cashier's checks to Colombia where Rodriguez could obtain access to the funds. In June 1983, Rodriguez wanted to end the relationship. However, in May, Pinto had met Humberto Cardona, who desired Pinto's services. Fundamentally, each of the transactions involved in these charges consisted of Cardona or an associate, Ruiz, transmitting money to Pinto with the assistance of one or more of the five defendants.

In May 1983, Pinto flew to Miami, met Cardona, and was introduced to a man called "Domingo." Cardona said Pinto would see Domingo again and receive money from him. Pinto identified "Domingo" as defendant Dr. Amador Cabrera. "Domingo" told Pinto that any future meetings would be at the same place, a parking lot near the Coral Gables Hospital, where Dr. Cabrera was a staff member.

Later that evening, a man identified as "Alvaro" arrived where Cardona and Pinto were drinking. Pinto identified "Alvaro" as defendant Alvaro Cubillos. Cubillos and Cardona talked privately, then left together and returned together in 15 to 20 minutes, Cardona carrying a package wrapped in brown paper containing $350,000, which Cardona identified as "our money." Pinto returned to Northern Kentucky and converted the $350,000 into 23 checks or drafts, which he carried to Colombia and delivered to Cardona.

In June 1983, Pinto made a trip to Colombia and Miami, though he ended up handling no money. He first went to Bogota, met Ruiz and Cardona, and was given two "beeper" numbers, one for "Domingo" and one for "Carlos," then unknown to Pinto. On July 5, Pinto called the number for Domingo, received a return call from him, and was told by Domingo that "there wasn't anything ... until one of the two guys in Bogota ... come to talk to him." Pinto also called the beeper number for Carlos, received a return call and was told that Carlos was "out of town getting the packages," and was asked to wait another day. Pinto also spoke to Cardona and was told to wait another day for Carlos. However, nothing transpired and Pinto returned to Kentucky.

Ruiz called Pinto in late July and told him he could come to Miami and get some money. Pinto met Ruiz in Miami on July 29. Ruiz made a call and the two were shortly joined at a bar by "Carlos," later identified by Pinto as defendant Carlos Santibanez. Pinto understood this to be the same Carlos whose beeper number he had been given. Ruiz and Carlos left, saying they were going outside, and soon returned together, with Ruiz carrying a package containing $100,000. Pinto returned to Kentucky, and repeated the laundering process.

In early August 1983, Pinto went to Miami, went to Ruiz's apartment, and was given $250,000. Pinto left an empty suitcase for future use, returned to Kentucky and laundered the money. Ruiz called Pinto on August 15, said he had talked with Domingo and would have more money for Pinto. On August 17, Pinto went to Miami, went to Ruiz's apartment the next day, and was given his suitcase with $100,000 in it. Ruiz said it was difficult to collect money right now as no one wanted to pay. Pinto and Ruiz took the suitcase to Miami Airport, checked it to Cincinnati, and alerted Pinto's son. The son picked up the suitcase and deposited the money. ¹

Pinto then drove Ruiz to an office near the airport, where Pinto was introduced to defendant Marco Betancourt. Betancourt and Ruiz talked, and told Pinto they had to go talk to someone. The three then drove to another office where Pinto was introduced to defendant G.D. Zapata. Pinto saw and heard Betancourt and Zapata argue over how much money Zapata owed to Cardona and Ruiz. Betancourt said the amount was $500,000. Zapata said he needed time to check his records and the four men agreed to meet again on the afternoon of August 20.

That morning, defendant Cubillos came to the Ruiz apartment and Ruiz, Pinto, and Cubillos went to a nearby restaurant, where defendant Betancourt joined them. The four then went to an office in Miami marked as the office of Zapata, where they met defendant Zapata and a friend. FBI agents observing the office saw a "lookout" remaining outside the office. Zapata acknowledged to Betancourt a $240,000 debt, but said he could not pay. Betancourt agreed that $240,000 was the right amount. Zapata and Ruiz then discussed the debt and means of payment. Zapata said he could pay if he could sell some "grass," asked for more "merchandise" (which meant cocaine, according to Pinto), and was told he would not get any until he paid. Cubillos agreed to call about the money the next week. The four then left. Betancourt told the four that they should all leave in one car and then "as a precaution" drive aimlessly to see if Zapata or his friends were following.

Shortly afterward on the same day, Pinto and Ruiz went to a bar in response to a beeper call, and met three men. Pinto was told one was a pilot, and Ruiz and the pilot went to another table and talked for an hour. Ruiz said the men had just arrived from Peru with "100 kilograms" of "merchandise" and wanted to be paid for the transportation. Ruiz asked Pinto to take him to see the "doctor" at Coral Gables Hospital. Pinto asked who the doctor was and was told "Domingo." They went to the parking lot used before, and Pinto saw Ruiz and defendant Cabrera talk. Ruiz returned, said that there was only $17,000 and that if Pinto could wait until the next day there would be more money.

The next morning, Pinto and Ruiz again went to the parking lot, and met Cabrera. Ruiz told Pinto that Ruiz had to do "some business" with Cabrera, and that Ruiz would go with Cabrera to pay the pilot for the trip. Ruiz and Cabrera then left together. Within ten minutes, a man came up to Pinto's automobile, said "this is for you," and gave him a brown package, similar to the packages in the other transactions, with about $90,000. Pinto returned to Northern Kentucky, began laundering the money, and was arrested on August 26. The beeper number Pinto was given for "Domingo" was leased by Cabrera's sister with Cabrera listed as the customer, and was cancelled on the first business day after the arrests.

This series of transactions makes it clear that there was a significant conspiracy involving, at a minimum, Pinto, Cardona, Ruiz, and a number of assistants manning phones, carrying packages, and collecting money. Each defendant disputes the sufficiency of the evidence linking him, individually, to these transactions, and disputes his connections with Pinto's Travel Act violations.

II

The individual defendants' objections to the substantive sufficiency of their convictions are given below. Defendants are considered in the order in which they appear in the narrative above.

Domingo Cabrera ("Domingo"; "the Doctor"). Cabrera contends that there is no evidence that he knew what Pinto would do with the money, and that he had no other knowledge of Pinto's interstate travel. Thus, citing United States v. Alsobrook, 620 F.2d 139, 143-44 (6th Cir.), cert. denied, 449 U.S. 843, 101 S.Ct. 124, 66 L.Ed.2d 51 (1980), he contends that the Travel Act conviction cannot stand. He also contends that there is no evidence of any connection between him and distribution of cocaine, and no evidence that he ever handled cocaine or spoke of it to anyone. This failure cannot be remedied by the testimony of Pinto as to the statements or actions of others, for two reasons. First, Pinto's testimony is generally hearsay, and the existence and requisites of the conspiracy necessary to introduce co-conspirator hearsay have not been proved. Second, even if some conspiracy were shown, for example between each def...