U.S. v. Calderon

• Decision Date: 14 November 1997
• Docket Number: 91-5743 and 94-4354,Nos. 90-6020,s. 90-6020
• Citation: 127 F.3d 1314
• Parties: 48 Fed. R. Evid. Serv. 247, 11 Fla. L. Weekly Fed. C 713 UNITED STATES of America, Plaintiff-Appellee, v. Alberto CALDERON, Sigfried Noa a.k.a. "Oro", Pablo Luis Martinez, Jr., a.k.a. "Tatico", Manuel Iglesias, a.k.a. "Albaro Perez", a.k.a. "Manolo", Rene Manuel Gamboa, Jose Abella, a.k.a. "Toto", Juan Vincent Caderno, Luis R. Garcia, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Pablo Luis MARTINEZ, Jr., Rene Manuel Gamboa, Alberto Calderon, Jose Abella, Manuel Iglesias, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Pablo Luis MARTINEZ, Jr., a.k.a. "Tatico", Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1314

127 F.3d 1314

48 Fed. R. Evid. Serv. 247, 11 Fla. L. Weekly

Fed. C 713

UNITED STATES of America, Plaintiff-Appellee, v. Alberto CALDERON, Sigfried Noa a.k.a. "Oro", Pablo Luis

Martinez, Jr., a.k.a. "Tatico", Manuel Iglesias, a.k.a.

"Albaro Perez", a.k.a. "Manolo", Rene Manuel Gamboa, Jose

Abella, a.k.a. "Toto", Juan Vincent Caderno, Luis R. Garcia,

Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee, v. Pablo Luis MARTINEZ, Jr., Rene Manuel Gamboa, Alberto

Calderon, Jose Abella, Manuel Iglesias,

Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Pablo Luis MARTINEZ, Jr., a.k.a. "Tatico", Defendant-Appellant.

Nos. 90-6020, 91-5743 and 94-4354.

United States Court of Appeals Eleventh Circuit.

Nov. 14, 1997.

Michael G. Smith, Ft. Lauderdale, FL, Alberto Calderon.

Clayton R. Kaeiser, Miami, FL, for Sigfriedo Noa.

Helen A. Hauser, Law Offices of David P. Dittmar, Coconut Grove, FL, Pamela Perry, Bierman, Shohat, Loewy & Perry, P.A., Miami, FL, for Pablo Martinez.

Nathan Diamond, Miami, FL, for Manuel Iglesias.

Sheryl J. Lowenthal, Coral Gables, FL, for Rene Gamboa.

Lisa Rosenthal, Bergendahl & Rosenthal, P.A., Miami, FL, for Jose Abella and Luis Garcia.

Naphtali Hertz Wacks, Miami Beach, FL, for Juan Caderno.

Dawn Bowen, Asst U.S. Atty., Suzan H. Ponzoli, Kathleen M. Salyer, Miami, FL, for United States.

Appeals from the United States District Court for the Southern District of Florida.

Before EDMONDSON and BIRCH, Circuit Judges, and FOREMAN ^*, Senior District Judge.

FOREMAN, Senior District Judge:

In this consolidated appeal, eight appellants appeal their convictions for various narcotics offenses arising from the importation of more than 1,300 kilograms of cocaine aboard the 38-foot cabin cruiser named What's Up. We affirm.

I. Background

On September 14, 1988, Customs Agent Richard Johnson received a tip that a suspicious vessel named What's Up was being towed into Tortola Marina in Key Largo, Florida. Agent Johnson learned that the What's Up had been previously sighted in the Bahamas and had failed to report its arrival into the United States in violation of United States law. Agent Johnson and other Customs personnel maintained constant visual surveillance of the boat until September 17, when a search of the boat revealed the presence of a large quantity of cocaine in hidden compartments in the boat's cabin. Subsequently, appellants and others were arrested and indicted on various charges including conspiracy to import and distribute cocaine from the Bahamas. Further investigation revealed that on three different occasions in the summer of 1988, cocaine was smuggled into the United States aboard the What's Up. Appellants participated in the importation and distribution conspiracy in different roles and, in some cases, at different times.

The case proceeded to trial before Judge James Lawrence King. Judge King presided over all phases of the trial with the exception of a portion of the jury's deliberations and the return of the verdicts. Those portions were presided over by Judge Thomas E. Scott. On May 21, 1990, the jury returned its verdict finding Abella guilty as to Counts I and VII; Caderno guilty as to Counts I, II, VII and VIII; Calderon guilty as to Counts I-VI; Gamboa guilty as to Counts II and VI; Garcia guilty as to Counts I, II, III, and IV; Iglesias guilty as to Counts I, II, VIII, and IX; Martinez guilty as to Counts I, II and VIII; and Noa guilty as to Counts I, II, IV, VI, VII and VIII. Appellants were sentenced to terms of imprisonment ranging from 188 months to 336 months. We will discuss the facts relevant to appellants' claims in greater detail in conjunction with our discussion of each of their assertions of error.

II. Sufficiency of the Evidence

Abella, Calderon, and Garcia contend that the evidence presented by the government was insufficient to sustain their convictions. More specifically, all three of them attack the credibility of the coconspirator witnesses, Harold Garcia, Rolando Alvarez, and Sisinio Torres, who testified against them. Abella and Garcia further assert that the evidence adduced at trial merely establishes their presence or association with the co-conspirators, not the knowing participation required to support a conspiracy conviction, and thus was insufficient to impose conspiratorial liability. Finally, Calderon claims that the evidence presented proved three separate conspiracies, not a single conspiracy as charged in the indictment and that Calderon was prejudiced by that variance. In response, the government argues that determination of witness credibility is the sole province of the jury, that as to each of the appellants the evidence proved sufficient knowing participation in the conspiracy, and that the evidence did in fact establish a single conspiracy to import and distribute three loads of cocaine between June and September, 1988.

Whether the record contains sufficient evidence to support the jury's verdict is a question of law that we review de novo. United States v. Harris, 20 F.3d 445, 452 (11th Cir.1994). Although the Court conducts its review without special deference to the district court, the evidence is viewed in the light most favorable to the government, with all reasonable inferences and credibility choices made in the government's favor. Id.; See also, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Johnson, 713 F.2d 654, 661 (11th Cir.1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1295, 79 L.Ed.2d 695 (1984). The verdict must stand if their is substantial evidence to support it, that is "unless no trier of fact could have found guilt beyond a reasonable doubt." United States v. Battle, 892 F.2d 992, 998 (11th Cir.1990).

It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided that a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt. A jury is free to choose among the constructions of the evidence.

United States v. Hardy, 895 F.2d 1331, 1334 (11th Cir.1990) (quoting United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982) (en banc), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983)). ¹ If, however, the record reveals a lack of substantial evidence from which a fact finder could find guilt beyond a reasonable doubt, we must reverse the defendant's conviction. Kelly, 888 F.2d at 740. We apply these general standards in reviewing each of appellants' sufficiency claims.

A. Credibility

Appellants first argue that the witnesses who testified against them were inherently incredible and, because their testimony represented the only evidence linking them to the charged crimes, that testimonial evidence was insufficient to establish their guilt beyond a reasonable doubt. Garcia contends that Sisino Torres had multiple prior convictions and admitted that his entire testimony in at least one of these earlier cases was untruthful. Abella contends that Harold Garcia has long been involved in drug smuggling, lied on his income tax return, sought and received extensive immunity from the government for himself and his wife despite the government's knowledge their misdeeds and admittedly "would lie to save himself." Abella also claims that Rolando Alvarez was both a cocaine dealer and user, also received immunity for himself and his family, was seeking a sentence reduction, has been accused of insurance fraud, and repeatedly lied to law enforcement agents. Calderon adopts Abella's and Garcia's characterizations of these witnesses.

It is well established that "[c]redibility determinations are the exclusive province of the jury." United States v. Parrado, 911 F.2d 1567, 1571 (11th Cir.1990), cert. denied, 498 U.S. 1104, 111 S.Ct. 1005, 112 L.Ed.2d 1088 (1991); See also United States v. Copeland, 20 F.3d 412, 413 (11th Cir.1994); United States v. Billue, 994 F.2d 1562, 1565 (11th Cir.1993), cert. denied, 510 U.S. 1099, 114 S.Ct. 939, 127 L.Ed.2d 230 (1994); United States v. Hewitt, 663 F.2d 1381 (1981). Hewitt is particularly applicable to the case before us. Therein, the appellant attacked the sufficiency of the evidence underlying his conviction for aiding and abetting the use of an explosive to commit a felony based upon the fact that it rested in large part on the testimony of two convicted felons testifying with immunity. Hewitt, 663 F.2d at 1385. In rejecting appellant's argument, we stated that a judgment of acquittal

is not required because the government's case includes testimony by "an array of scoundrels, liars and brigands." The jury was free to disbelieve the [ ] government witnesses whose faults were exhaustively catalogued by the attorney[s].... Furthermore, the trial judge fully instructed the jury on the degree of suspicion they should entertain when considering the testimony of accomplices who testify with immunity. By bringing back a verdict of guilty, however, the jury found that the testimony of [the witnesses] was credible. Because the testimony was not incredible as a matter of law, we must accept this determination by the jury.

Id. at 1385-86 (citations omitted); See also United States v. Rivera, 775 F.2d 1559, 1561 (11th Cir.1985), cert. denied, 475 U.S. 1051, 106 S.Ct. 1275, 89 L.Ed.2d 582 (1986). "For testimony of a government witness to be incredible as a matter of law, it must be 'unbelievable on its face.' " Rivera, 775 F.2d at 1561 (11th Cir.1985) (quoting United States v. Cravero, 530 F.2d 666, 670 (5th Cir.1976)). It must be testimony as to " 'facts that [the witness] physically could not have possibly observed or events that could not have occurred under the laws of nature.' " Rivera, 775 F.2d at 1561 (quoting Cravero, 530 F.2d at 670). Further, " 'the fact that [the witness] has consistently lied in the past, engaged in...