U.S. v. Bravo
| Decision Date | 24 November 1993 |
| Docket Number | No. 496,D,496 |
| Citation | 10 F.3d 79 |
| Parties | UNITED STATES of America, Appellee, v. Alberto BRAVO; Griselda Blanco; Bruno Bravo; Francisco A. Armedo-Sarmiento; Jose A. Cabrera-Sarmiento; Edgar Restrepo-Botero; Leon Velez; Bernardo Roldan; Arturo Gonzalez; Jorge Gonzalez; Libardo Gill; Ruben Dario Roldan; Marconi Roldan; Carmen Gill; Carlos Marin; Beatrice Gonzalez; Nina Nino; Oscar Perez; Ernesto Guello; Julian Carrion Arco; Gilberto Rojas; Guillermo Palacios; Arturo Zapata; James Mario Gaviria; Gabriel Correa; Alvaro Cabrera-Sarmiento; Antonio Romero; Elsa Cabrera; Cesar J. Riveros-Rincon; William Rodriguez-Parra; Olegario Montes-Gomez; Ramiro San Cocho; Humberto Sandoval; Alberto Luis Herrara; Rhonda Sue Shirah; William Andries; Luis Estrada, Defendants, Gaston Robinson, Defendant-Appellant. ocket 92-1395. |
| Court | U.S. Court of Appeals — Second Circuit |
Stephen F. Markstein, New York City, for defendant-appellant Gaston Robinson.
Miguel A. Estrada, Sp. Asst. U.S. Atty., S.D.N.Y., New York City (Otto G. Obermaier, U.S. Atty., Dennis J. McInerney, and Andrew C. McCarthy, Asst. U.S. Attys., S.D.N.Y., of counsel), for appellee.
Before: OAKES, ALTIMARI, and MAHONEY, Circuit Judges.
Defendant-appellant Gaston Robinson appeals from a judgment of conviction entered June 23, 1992 in the United States District Court for the Southern District of New York, John M. Cannella, Judge, upon Robinson's recapture after he was a fugitive for more than fifteen years as a result of his flight during his trial before a jury. Trial continued in absentia, and Robinson, along with his codefendants, was convicted on January 23, 1976. Upon Robinson's recapture, the district court exercised its discretion to refrain from deciding the merits of Robinson's postconviction motions (1) for acquittal, (2) for a new trial, and (3) to supplement the trial record, concluding that Robinson waived his right to have these motions adjudicated by virtue of his flight during trial and absence for over fifteen years.
Robinson contests on appeal (1) the district court's refusal to consider his postconviction motions, and (2) the sentence imposed upon him.
We affirm.
An indictment returned on April 30, 1975 charged Robinson, his codefendants, and unindicted coconspirators with engaging in a conspiracy to manufacture in Columbia and elsewhere, import into the United States, possess with intent to distribute, and distribute cocaine (count one) and marijuana (count two) in violation of 21 U.S.C. Secs. 812, 841(a)(1), 841(b)(1), 952(a), 955, 959, 960(a), and 960(b). 1 Two prior opinions of this court, familiarity with which is assumed, have resulted from trials generated by this indictment. See United States v. Blanco, 861 F.2d 773 (2d Cir.1988), cert. denied, 489 U.S. 1019, 109 S.Ct. 1139, 103 L.Ed.2d 200 (1989); United States v. Armedo-Sarmiento, 545 F.2d 785 (2d Cir.1976), cert. denied, 430 U.S. 917, 97 S.Ct. 1330, 1331, 51 L.Ed.2d 595 (1977).
Trial of the indictment against twelve of the defendants, including Robinson, commenced on October 30, 1975 and continued for fourteen weeks. See Armedo-Sarmiento, 545 F.2d at 789. The main witnesses regarding Robinson's activities were William Andries, a narcotics smuggler who became a cooperating witness for the government, and Leonel Fernandes, a former maitre d'hotel of a restaurant in Miami, Florida.
Andries testified before the jury that: (1) Robinson was present at a meeting in November 1973 with Andries and other members of the conspiracy during which the conspirators discussed a shipment of twenty-eight kilos of cocaine and 5,000 pounds of marijuana that was due to arrive on the Providence Trader, a large oceangoing vessel; (2) after an initial failed attempt to intercept the Providence Trader, the conspirators were ultimately successful in offloading the cocaine and a portion of the marijuana to a 23-foot courier boat at a location off the coast of Miami; (3) Robinson was engaged to, and did, navigate the courier boat to and from its rendezvous with the Providence Trader; (4) at the time of that engagement, Robinson inquired regarding the cargo that was to be offloaded, and Andries responded that it was 5,000 pounds of marijuana; and (5) Robinson accepted a total of $40,000 in payments from Andries for Robinson's efforts in retrieving the cocaine and marijuana.
Andries also testified outside the presence of the jury, when the court permitted examination of Andries by Robinson's counsel (subsequent to Robinson's flight) to determine whether Andries would be called as a defense witness for Robinson. Andries then testified that one Pepe Cabrera had paid Robinson an additional $40,000 for bringing in the cocaine from the Providence Trader. Andries also testified at that time that he "d[idn't] think [Robinson] knew I was picking up cocaine until I actually picked it up from the [Providence Trader]," and that Andries was "sure [Robinson] didn't know for sure what he was picking up, especially the cocaine." Andries also explained, however, that of the $40,000 that he gave Robinson, $20,000 was "for the trip" and another $20,000 was "extra for bringing in the cocaine." When Andries testified that he told Robinson why he was being paid the extra $20,000, Robinson's counsel decided not to call Andries as a defense witness.
Fernandez testified that on several occasions in the fall of 1973 he had seen Robinson in the company of Cabrera, who Fernandez knew to be involved in the importation of cocaine and marijuana. Fernandez also testified that he had seen Robinson, Cabrera, and Andries depart by boat from Miami to pick up a "big load coming in from Colombia," and that Cabrera had informed him that Robinson's participation was necessary because Robinson was "familiar with traveling in the ocean" and therefore would "be like the captain of the voyage." Fernandez further testified that when he visited Cabrera the next day at Cabrera's apartment, Cabrera (1) informed him that the prior day's trip was a success, (2) displayed thirteen kilograms of cocaine in a suitcase, and (3) stated that approximately two thousand pounds of marijuana were in a nearby truck waiting to be transported to New York.
On November 24, 1975, following the testimony of Andries and Fernandez and after the court had, on motion of the government, increased Robinson's bail from $50,000 to $100,000, Robinson failed to appear. Judge Cannella issued a bench warrant for Robinson's arrest, further increased his bail to $1,000,000, and continued the trial of Robinson in absentia. 2 Robinson's bail was ordered forfeited on December 1, 1975.
At the close of the government's case-in-chief, all defendants, including Robinson, joined in a motion to dismiss the second count. Because Robinson had already absconded, the motion was made on his behalf by his counsel. The district court granted that motion "for lack of proof of a conspiracy relating solely to marijuana." Armedo-Sarmiento, 545 F.2d at 789 n. 1.
On January 23, 1976, the jury returned guilty verdicts against all twelve defendants as to count one of the indictment. 3 The district court refrained from sentencing Robinson in absentia. Robinson remained at large until May 23, 1991, when the United States Coast Guard apprehended him aboard the Endeavor I, a vessel travelling on the high seas approximately 140 miles south of the Panama Canal with a cargo of approximately 2,000 kilograms of cocaine. 4
Following his recapture, Robinson moved before Judge Cannella for acquittal pursuant to Fed.R.Crim.P. 29(c), for a new trial pursuant to Fed.R.Crim.P. 33, and to supplement the record pursuant to Fed.R.App.P. 10(e). Robinson contended that: (1) there was insufficient evidence of his guilt to sustain the jury verdict; (2) the court impermissibly amended the indictment when it dismissed count two and allowed the jury to consider evidence of involvement in marijuana in support of the cocaine conspiracy charged in count one, and/or there was prejudicial variance between count one and the evidence that the jury was permitted to consider; (3) pursuant to United States v. Orozco-Prada, 732 F.2d 1076, 1083-84 (2d Cir.), cert. denied, 469 U.S. 845, 105 S.Ct. 154, 155, 83 L.Ed.2d 92 (1984), the government must elect between having Robinson (a) sentenced under the penalties applicable to a marijuana conspiracy or (b) retried on count one; and (4) pursuant to United States v. Selva, 546 F.2d 1173 (5th Cir.1977), and Fed.R.App.P. 10(e), Robinson was entitled to a hearing to supplement the record with respect to missing portions of the trial transcript that contained the government's principal summation, and to a new trial "if a substantially verbatim reconstruction of the pertinent parts of the summation were not possible."
Judge Cannella, relying on prior decisions of this court which have applied the "disentitlement doctrine" to refuse to adjudicate the merits of a fugitive's claims of trial error, declined to decide the merits of Robinson's motions, stating that:
By declining to consider Robinson's motion[s], other defendants will be discouraged from escaping and judicial resources will be used more efficiently. In addition, the delay occasioned by Robinson's fifteen year absence would clearly prejudice the prosecution should there be a new trial. Memories of the witnesses are certain to have dimmed in fifteen years and as Robinson's motion to supplement the trial record attests, evidence has already been lost. Robinson's contention that the government's ability to retry the case has been enhanced because previously unavailable witnesses may be able to testify is absurd. It would be unconscionable to allow Robinson to benefit from his deliberate attempt to evade justice. See [United States v.] Matista, 932 F.2d [1055, 1058 (2d Cir.1991) ]; [United States v.] Persico, 853 F.2d [134, 138 (2d Cir.1988) ].
The court then sentenced...
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