U.S. v. Borda

• Decision Date: 09 March 2011
• Docket Number: Criminal Action No. 07–0065 (GK).
• Citation: 768 F.Supp.2d 289
• Parties: UNITED STATES of America, Plaintiff,v.Christian Fernando BORDA, et al., Defendants.
• Court: U.S. District Court — District of Columbia

768 F.Supp.2d 289

UNITED STATES of America, Plaintiff,

v.Christian Fernando BORDA, et al., Defendants.

Criminal Action No. 07–0065 (GK).

United States District Court, District of Columbia.

March 9, 2011.

Paul W. Laymon, Robert J. Raymond, Charles D. Griffith, Jr., U.S. Department of Justice, Washington, DC, for Plaintiff.A. Eduardo Balarezo, Law Offices Of A. Eduardo Balarezo, Washington, DC, Carmen D. Hernandez, Highland, MD, William B. Purpura, Baltimore, MD, for Christian Fernando Borda.David Walker Bos, Federal Public Defender for D.C., Washington, DC, for Alvaro Alvaran–Velez.Mark John Carroll, Mark John Carroll, Esquire, Potomac, MD, for Juan Jaime Montoya–Estrada.Jorge Rios–Torres, Annandale, VA, Oscar Arroyave, Law Offices of Oscar Arroyave, P.A., Coconut Grove, FL, for Alexis Barrera–Parra.

MEMORANDUM OPINION

GLADYS KESSLER, District Judge.

On December 9, 2010, Defendants Christian Fernando Borda and Alvaro Alvaran–Velez were convicted of conspiracy to distribute five kilograms or more of cocaine with the intent or knowledge that the cocaine would be unlawfully imported into the United States. See Verdict Form as to Christian Fernando Borda [Dkt. No. 207]; Verdict Form as to Alvaro Alvaran–Velez [Dkt. No. 209]; 21 U.S.C. §§ 959, 963. Defendants first moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29 at the close of the Government's case on December 1, 2010. The Court reserved decision on Defendant's motion pursuant to Rule 29(b), which states that “[t]he court may reserve decision on the motion, proceed with the trial (where the motion is made before the close of all the evidence), submit the case to the jury, and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict.” Fed.R.Crim.P. 29(b).

On December 22, 2010, after the Jury's verdict of guilty, Defendants renewed their Motion for Judgment of Acquittal [Dkt. No. 217]. Upon consideration of the Motion, the Opposition, the Reply, the Government's Response to Defendants' Reply, and Defendants' Surreply, as well as the applicable caselaw, Defendants' Joint Renewed Motion for Judgment of Acquittal is denied.

I. Background

Defendants were each convicted of conspiring, beginning in January 2005 and continuing at least to October 2005, to distribute five or more kilograms of cocaine with the intent or knowledge that the cocaine would be unlawfully imported into the United States. See 21 U.S.C. §§ 959, 963. At trial, Defendants did not dispute that they had distributed cocaine during that period, but argued that they neither knew nor intended that the cocaine would be unlawfully imported into the United States.

The Government offered evidence of three separate drug deals in 2005. The first deal, “Palm Oil One,” took place between January and May 2005. In Palm Oil One, Defendants Borda and Alvaran arranged to ship 1,553 kilograms of cocaine concealed in drums of palm oil from Cartagena, Colombia to Puerto Progreso, Mexico. Upon the shipment's arrival in Puerto Progreso, an associate named Raul Valladeres, or “Junior,” contacted Defendants to say that he could transport the cocaine to Monterrey, Mexico and would pay Borda $9,100 per kilogram within ten days after receipt of the drugs. Tr. at 18:24–20:18, 25:10–28:15 A.M. Session, Nov. 4, 2010. Defendants agreed to Junior's proposal, and Junior transported the cocaine north to Monterrey. Id.; Gov't Ex. 40b at 3–4.

The Government introduced evidence that Monterrey is located less than two hours away from the United States border. The Government's evidence also showed that Monterrey is an inland city in Mexico with insufficient demand for a load of cocaine as large as the Palm Oil One load. See Gov't Ex. 40b at 6 (Defendant Alvaran stated that Monterrey is “not a market for personal use”).

In addition, the Government introduced evidence that Defendants were aware that Junior was trying to sell the cocaine across the Mexico–United States border.

First, on June 15, 2005, Defendant Alvaran met with the Government's confidential informant, Camilo Suarez, after Junior had failed to pay Defendants for Palm Oil One within ten days of receiving the drugs. Suarez testified at trial that, in the course of that meeting, Alvaran expressed his understanding that the cocaine had been moved north of Mexico City to Monterrey. Tr. at 22:2–9 P.M. Session, Nov. 15, 2010; Gov't Ex. 34b.

Second, on July 20, 2005, Borda met with Alvaran and Suarez to discuss Junior's progress in making payments for Palm Oil One. Suarez defended Junior's delay to Borda by explaining that the “market went bad because the border got, [ ] harder for him.” Gov't. Ex. 40b at 3–7. Defendants then discussed the conditions at the border in further detail. Id. At one point, Borda noted that he understood Junior's difficulties because he had once been a drug dealer in the United States. Id. at 10. Borda also went on to explain that his source for cocaine in Colombia had told him how such transactions usually proceed:

[Mexicans] get the merchandise, they say they'll take it, they pay us nine thousand in Monterrey and they go and sell it on the other side ¹ for, for fourteen thousand or fifteen thousand pesos, and we're the ones that are losing because we lose time, money and everything else.

Id. at 22–23.

Third, Suarez testified at trial that “[a]ll 1,553 [kilograms] went to the United States.” Tr. at 44:5–9 A.M. Session, Nov. 18, 2010. Suarez also testified that he did not recall any discussion of Borda's share of the Palm Oil One cocaine, which totaled 724 kilograms, going to Europe. Tr. at 46:13–17 P.M. Session, Nov. 18, 2010.² Finally, both Suarez and Borda's secretary in Mexico City, Juan Montoya, testified at trial that payment was received from Junior for Palm Oil One in United States currency. Tr. at 45:17–24 A.M. Session, Nov. 17, 2010; Tr. at 71:9–18 A.M. Session, Nov. 24, 2010.

In the second deal, “Palm Oil Two,” Defendants discussed shipping additional cocaine from Colombia to Mexico, but ultimately never did so because of their difficulties in receiving payment for Palm Oil One. Finally, the third deal, named the “Chino Load,” occurred in September 2005. In this third deal, Borda, Alvaran, and an associate named “El Chino” agreed to transport a second load of 3,000 kilograms of cocaine from Colombia to Mexico City, Mexico in two “go-fast boats,” one of which was a Venezuelan-registered fishing vessel. However, the crew of that fishing vessel, which was carrying half of the Chino Load, threw the cocaine into the Caribbean Sea shortly before being intercepted by the United States Coast Guard. Tr. at 41:24–42:17 A.M. Session, Nov. 16, 2010. Consequently, the United States Coast Guard found no cocaine on the ship.

On the basis of this evidence, the Jury returned a verdict of guilty against Defendant Borda and Defendant Alvaran, concluding that each conspired to distribute more than five kilograms with the knowledge or intent that the cocaine would be unlawfully imported into the United States.

II. Standard of Review

Defendants raising a Rule 29 motion must meet a demanding standard in order to obtain a judgment of acquittal. A conviction in a criminal trial must be upheld if “ ‘ any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” United States v. Wahl, 290 F.3d 370, 375 (D.C.Cir.2002) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original)). “ ‘In making that determination, the prosecution's evidence is to be viewed in the light most favorable to the government, drawing no distinction between direct and circumstantial evidence, and giving full play to the right of the jury to determine credibility, weigh the evidence and draw justifiable inferences of fact.’ ” United States v. Battle, 613 F.3d 258, 264 (D.C.Cir.2010) (quoting United States v. Andrews, 532 F.3d 900, 903 n. 1 (D.C.Cir.2008)).

III. Analysis

Defendants argue that the Government's evidence fails to prove beyond a reasonable doubt that they knew or intended that the cocaine was destined for the United States. A conviction under 21 U.S.C. § 960 must rest on proof of the defendant's actual knowledge; it is not enough to show that a defendant should have known that the illegal substance would be unlawfully imported into the United States. United States v. Chan Chun–Yin, 958 F.2d 440, 443 (D.C.Cir.1992). However, “proof [of a defendant's actual knowledge] may take the form of circumstantial as well as direct evidence.” Id.

In the course of arguing their Motion, Defendants urge this Court to interpret the Government's evidence, or in some cases the Government's lack of evidence, as giving rise to certain inferences favorable to acquittal. See Defs.' Mot. at 3–14. It should be emphasized at the outset that this Court's task in reviewing a Rule 29 motion is not to weigh the evidence and reach its own conclusions. Instead, its task is to determine whether, viewing the evidence in the light most favorable to the prosecution and according the verdict the benefit of all legitimate inferences, a reasonable trier of fact could have found the essential elements beyond a reasonable doubt. Battle, 613 F.3d at 264.

As discussed above, the Government's evidence showed that Junior informed Defendants of his intention to bring the Palm Oil One cocaine shipment, including Borda's share, north from Puerto Progreso to Monterrey, Mexico shortly after it was delivered from Colombia. The evidence also showed that Monterrey, which has no market for personal consumption of cocaine, is less than two hours from the United States border. In addition, the evidence showed that Borda received payment from Junior in United States currency. Finally, Junior's delay in paying Borda and Alvaran for the Palm Oil One cocaine led to a series of discussions in which Junior's...