U.S. v. Cabrera

• Decision Date: 30 August 2010
• Docket Number: Criminal Action No. 04-446-49 (TFH)
• Citation: 734 F.Supp.2d 66
• Parties: UNITED STATES of America v. Erminso Cuevas CABRERA, Also known as "Mincho," Defendant.
• Court: U.S. District Court — District of Columbia

734 F.Supp.2d 66

UNITED STATES of America

v.Erminso Cuevas CABRERA, Also known as "Mincho," Defendant.

Criminal Action No. 04-446-49 (TFH).

United States District Court,

District of Columbia.

Aug. 30, 2010.

Pablo Quinones, Randall Wade Jackson, Eric J. Snyder, U.S. Attorney's Office, New York, NY, for United States of America.

Gary M. Sidell, Washington, DC, for Erminso Cuevas Cabrera.

MEMORANDUM OPINION

THOMAS F. HOGAN, District Judge.

Pending before the Court is defendant Erminso Cuevas Cabrera's Motion For A Judgment Of Acquittal, Or, In The Alternative, Motion For New Trial And Motion To Dismiss [Docket No. 270]. The defendant contends that he is entitled to a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure on the grounds that the evidence proved at trial impermissibly varied from the allegations in the indictment by establishing multiple conspiracies rather than a single conspiracy, he was prejudiced by being joined with his co-defendant at trial, and the government failed to present sufficient evidence to sustain his conviction. In addition, the defendant asserts that he is entitled to a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure because the prosecutor made improper remarks during closing arguments, the Court improperly denied his trial motions to sever and for a mistrial, the Court improperly denied is pre-trial motions to sever, and his conviction was not supported by the weight of the evidence. For the reasons set forth below, the Court will deny the motions.

I. BACKGROUND

On March 1, 2006, Erminso Cuevas Cabrera, who is also known as "Mincho," was indicted with 50 other individuals and charged with unlawfully, intentionally, and knowingly combining, conspiring, confederating and agreeing with others known and unknown to violate the narcotics laws of the United States. (Indictment ¶ 1.) The objects of the alleged narcotics conspiracy were (1) to import into the United States five kilograms and more of mixtures and substances containing detectable amounts of cocaine and (2) to manufacture and distribute five kilograms and more of mixtures, compounds and substances containing detectable amounts of cocaine, and coca leaves, intending and knowing that these controlled substances would be unlawfully imported into the United States. (Indictment ¶ 2.) To summarize, the indictment specifically alleged the following:

The means and methods of the conspiracy entailed a structured and organized cocaine manufacturing, production, supply and distribution system controlled by the Fuerzas Armadas Revolucionarias de Colombia ("FARC"), which was described as a left-wing guerilla organization that "has evolved into the world's largest supplier of cocaine and cocaine paste." (Indictment ¶ 7.) The FARC is hierarchically organized and structured, with policies set by the Secretariat, which consists of "the top seven leaders who are the ultimate decision makers of the FARC," and the Estado Mayor, which is subordinate to the Secretariat but consists of the members of the Secretariat plus 20 or so other members who are "Bloc Commanders, senior Front Commanders, and other individuals who have attained leadership positions within the FARC." (Indictment ¶¶ 10-11.) The geographical areas of Colombia over which the FARC exercises dominion are divided into Blocs or Joint Commands, which are further subdivided into numbered "Fronts" or "Mobile Columns." (Indictment ¶¶ 12, 15.) A Front is "primarily responsible for all activities in the geographic area [that] it controls, including all activities relating to cocaine and cocaine paste manufacturing and distribution." (Indictment ¶ 12.) These Fronts and Mobile Columns are led by Front Commanders with the assistance of Finance Officers who manage the Front's financial interests, "including matters concerning narcotics manufacturing and distribution." (Indictment ¶¶ 12-13.)

According to the allegations in the indictment, the FARC relies on income from cocaine trafficking to fund the organization's activities and procure weapons. (Indictment ¶¶ 14, 25, 27, 30, 31.) Because the FARC governs large geographic regions of Colombia where coca growing and cocaine processing is prolific, over time it has exerted authoritarian control and dominance over cocaine production and distribution in those regions and established distribution networks to increase its revenues and facilitate cocaine's importation into the United States. (Indictment ¶¶ 7-8, 12, 17-34.) The indictment alleges that the FARC accomplishes this by establishing strict policies that govern cocaine production and distribution and severely enforcing those policies, monopolizing the pricing and purchase of coca paste from farmers who grow coca and convert it to cocaine paste, taxing all aspects of the cocaine trade, running the laboratories that process cocaine paste into manufactured powder cocaine or taxing independent laboratories that do so, setting the price at which cocaine is sold, building and operating clandestine air strips to transport cocaine, and establishing distribution networks to import cocaine into the United States. (Indictment ¶¶ 4, 11, 12, 18-29.) The FARC's individual Fronts are responsible for financing themselves by managing the cocaine trade and revenues for the region the Front oversees and then redistributing revenues and resources throughout the FARC "to support other Fronts that generate [ ] smaller revenues from the manufacture and distribution of cocaine paste and cocaine" and "for the enrichment of the Secretariat, Estado Mayor and Bloc commanders, and in order to purchase weapons and supplies for all members of the FARC." (Indictment ¶ 30.) The Fronts are aided in this endeavor by associates "who work with the Fronts in the narcotics trade and who assist in the manufacturing of cocaine and the exchange of cocaine for weapons." (Indictment ¶ 14.)

The indictment goes on to allege that the defendant was a FARC associate "who managed cocaine laboratories for the FARC's 14th Front, oversaw the production and distribution of hundreds of thousands of kilograms of cocaine" and who"converted as much as 2.5 tons of cocaine paste into cocaine approximately several times a month." (Indictment ¶¶ 35(d), 35(d)(iii)). In addition, the defendant allegedly operated a cocaine laboratory that was equipped by the FARC, received ton quantities of cocaine paste from the 14th Front's Finance Officer, converted ton quantities of cocaine paste in his laboratories and provided the finished cocaine to drug transportation organizations identified by his brother, Jose Benito Cabrera Cuevas, also known as "Fabian Ramirez," who was a member of the Estado Mayor, regularly sent billions of Colombian pesos to the 14th Front's Finance Officer to pay for cocaine paste, and supplied ton quantities of FARC cocaine to an unindicted co-conspirator who transported the cocaine from the defendant's laboratory. (Indictment ¶¶ 35(d)(i)-(vi).)

On September 20, 2007, the defendant was extradited from Colombia to the United States to stand trial for the charged crimes. After the subsequent extradition and arraignment of three co-defendants, as well as protracted pretrial proceedings in this complex international criminal case, the trial of the defendant and co-defendant Juan Jose Martinez Vega began on February 24, 2010. Because the defendant's pending motions challenge the sufficiency of the evidence at trial, in addition to other issues, a summary of the trial evidence is warranted.

The evidence at trial ¹ established that Colombia became a leader in cocaine production in the 1990s, with production from the late 1990s into the early 2000s increasing from about 25% to 60% of the world's coca. (Trial Tr. PM Session 21-22, Feb. 24, 2010.) Colombia produces between 500 and 600 metric tons of cocaine annually and is the "number-one coca cultivator as well as the number-one producer of cocaine." (Trial Tr. PM Session 24, 30, 40, Feb. 24, 2010.) The United States is the world's largest cocaine consumer and approximately 90% of the cocaine consumed in the United States comes from Colombia. (Trial Tr. PM Session 31, 42, Feb. 24, 2010.) The United States also is the predominant destination for cocaine leaving Venezuela, which borders Colombia and through which cocaine is smuggled from Colombia. (Trial Tr. P.M. Session 45-46, 62, Feb. 24, 2010.)

Cocaine imported from Colombia arrives in the United States as a powder that is formed into a kilogram-sized brick that is worth, on average, about $2,000 per kilogram when ready for export in Colombia and about $30,000 in the United States. (Trial Tr. PM Session 24, 31, Feb. 24, 2010.) Colombian cocaine typically has been imported into the United States via a secondary country because of transportation limitations and because narcotics traffickers tend to seek areas of "weak law enforcement," with "porous borders" that create a "path of least resistance" when compared to direct shipment to the United States. (Trial Tr. PM Session 24, 27, Feb. 24, 2010.) About 90% of the cocaine imported from Colombia into the United States travels through Central America and Mexico, with the remaining 10% traveling through Caribbean countries. (Trial Tr. PM Session 25, 27, 29, Feb. 24, 2010.) Because it is more profitable to sell cocaine in the United States versus Mexico,and the demand is greater, the vast majority of cocaine transported to Mexico from Colombia ultimately is imported into the United States. (Trial Tr. Feb. 24, 2010 P.M. Session 36.) Virtually every mode of transportation is used to transport cocaine from Colombia to the United States. (Trial Tr. P.M. Session 32-35, 50-53, Feb. 24, 2010.)

The trial evidence also established that the Fuerzas Armadas Revolucionarias de Colombia ("FARC")-a Marxist organization present almost everywhere in Colombia but particularly in rural regions of the country-initially interjected itself into the cocaine trade by...