U.S. v. Camargo-Vergara
| Decision Date | 25 July 1994 |
| Docket Number | CAMARGO-VERGAR,No. 92-4159,A,92-4159 |
| Citation | 26 F.3d 1075 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Ricardo Eliasntonieta Maria Sanchez, Santos Efrain Dominguez, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Marc S. Nurik, Ft. Lauderdale, FL and Jeffrey D. Feldman, McDermott, Will & Emergy, Miami, FL, for Dominguez.
James W. McAdams, III, U.S. Atty. and Jeffrey H. Sloman, Asst. U.S. Atty., Miami, FL, for appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before HATCHETT and EDMONDSON, Circuit Judges, and MELTON *, Senior District Judge.
In this cocaine conspiracy case, we affirm the convictions and sentences of two of the appellants, but reverse the convictions and vacate the sentences of the remaining appellant.
On April 26, 1991, law enforcement officers arrested Santos Dominguez, Ricardo Camargo-Vergara, and Antonieta Sanchez in connection with the importation of cocaine and conspiracy to possess with intent to distribute 212 kilograms of cocaine.
Two confidential informants for the Drug Enforcement Administration, Alfredo Ferrerio and "Mr. J.," posed as drug traffickers and negotiated with Oscar Fontalvo, a codefendant in this case, to import 212 kilograms of cocaine into the United States from Colombia.
Camargo-Vergara, Fontalvo's frequent companion, participated in several discussions with Fontalvo and the informants concerning the impending drug importation. Camargo-Vergara offered to help with the delivery, storage, and sale of the cocaine. Additionally, he presented suggestions on how to transport the contraband and volunteered to procure a place to store it.
On April 23, 1991, an undercover DEA agent, Willy Hernandez, posing as the drug courier, met with Fontalvo and Camargo-Vergara and told them that 212 kilograms of cocaine had successfully arrived via boat in the United States and were hidden in a safe place. The agent promised that he would not deliver the cocaine until he received payment. During the conversation, Camargo-Vergara inquired as to whether Hernandez was a police officer.
After the meeting, Fontalvo called a Colombian drug trafficker and told him he needed money to have the courier release the cocaine. The Colombian drug trafficker referred Fontalvo to a person later identified as Santos Dominguez. Fontalvo called Dominguez and arranged to meet him at a local supermarket. Dominguez told Fontalvo that he had a moustache and would be driving a white Lexus.
At the designated time, Dominguez, drove to the supermarket in a white Lexus but became suspicious that agents were monitoring the area and consequently left without meeting Fontalvo. When Fontalvo later notified his Colombian associate that he failed to meet Dominguez, Fontalvo was referred to Antonietta Sanchez.
Fontalvo met Sanchez and they developed a plan to assuage Dominguez's suspicion. Sanchez, a trusted associate of a Colombian drug trafficker, agreed to operate as a middleperson between Fontalvo and Dominguez. Sanchez agreed to loan Fontalvo her car so Fontalvo could load it with cocaine and return it to her. Sanchez would then deliver the 212 kilograms of cocaine in two equal installments to Dominguez in exchange for approximately $1 million and return the payment to Fontalvo.
Hernandez, the drug courier, agreed with the plan and arranged for the government to load Sanchez's car with approximately 50 kilograms of sham cocaine, packaged to look like true cocaine. The false cocaine differed from genuine cocaine, however, in that when packaged the sham cocaine felt softer than true cocaine. The DEA also sprayed the cocaine packages with a special rub-off chemical that reacts to ultraviolet light, thereby identifying persons who handled the cocaine.
A second undercover agent drove the sham cocaine-laden car back to pick up Camargo-Vergara and Fontalvo. Law enforcement agents arrested Fontalvo and Camargo-Vergara shortly thereafter when Camargo-Vergara noticed that government agents were following them.
After these arrests, the government continued the charade and returned the car to Sanchez for delivery to Dominguez. Sanchez then drove the car to an underground parking garage where she met Dominguez. Dominguez removed the footlockers from the car and accompanied Sanchez upstairs to a vacant apartment. In a post-arrest statement, Sanchez stated that Dominguez then opened the footlockers, felt the sham cocaine, and said,
Government agents arrested Dominguez and Sanchez separately, when they drove out of the parking garage in their respective cars.
The government asserts that Dominguez admitted in a post-arrest statement to DEA Agent Cynthia Schultz that Similarly, the chemical on the kilogram-sized packages rubbed off on Dominguez. Agents also discovered in Dominguez's car a piece of paper inscribed with the name and phone number of a Colombian drug trafficker which matched a page out of the note pad taken from Sanchez at the time of her arrest.
On December 12, 1991, a jury convicted Dominguez and Camargo of importation of cocaine, conspiracy to possess with intent to distribute, and possession with intent to distribute cocaine. A jury also convicted Sanchez of conspiracy to possess with intent to distribute cocaine.
Camargo-Vergara and Sanchez argue that the evidence is insufficient to support their convictions. Camargo-Vergara further argues that the district court clearly erred in refusing to reduce his offense level pursuant to the United States Sentencing Guidelines for minimal participation in the offense.
Dominguez argues that the district court abused its discretion in denying his motions for severance and mistrial, and in providing improper instructions to the jury. Dominguez also argues that the evidence was insufficient to sustain his convictions for conspiracy to import cocaine, importation of cocaine, and conspiracy to possess with intent to distribute cocaine. Dominguez also complains that the sentencing court improperly applied the Sentencing Guidelines.
The appellants present the following issues for our review:
(1) whether the evidence was sufficient to support the their convictions;
(2) whether the district court clearly erred in refusing to reduce Camargo-Vergara's offense level for minimal participation in the offense;
(3) whether the district court abused its discretion in denying Dominguez's motions for severance and mistrial;
(4) whether the district court abused its discretion in instructing the jury; and
(5) whether the district court improperly sentenced Dominguez under the Sentencing Guidelines.
Camargo-Vergara challenges the sufficiency of the evidence supporting his conviction for conspiracy to possess with intent to distribute cocaine. He argues that the trial evidence failed to prove his knowledge of the conspiracy. He further argues that his intoxication during certain relevant events negated the finding that he harbored specific criminal intent.
To determine whether sufficient evidence supports a conviction, this court must view the evidence in the light most favorable to the government and determine whether a reasonable fact finder could conclude that the defendant was guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Herrera, 931 F.2d 761, 762 (11th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1588, 118 L.Ed.2d 306 (1992).
Upon a review of the record, we find that the evidence sufficiently supported Camargo-Vergara's conviction. Camargo accompanied Fontalvo to nearly every significant event leading to his arrest. For example, he was present at and even participated in several drug negotiations. He also offered suggestions on how to transport and store the cocaine. Finally, he actively participated in the attempted delivery of the cocaine. Viewed in the light most favorable to the
government, this evidence could lead a reasonable fact-finder to conclude that Camargo-Vergara harbored the requisite knowledge and specific intent for conspiracy to possess with intent to distribute cocaine. See United States v. Cruz-Valdez, 773 F.2d 1541, 1547 (11th Cir.1985) (), cert. denied, Ariza-Fuentes v. United States, 475 U.S. 1049, 106 S.Ct. 1272, 89 L.Ed.2d 580 (1986); United States v. Bain, 736 F.2d 1480, 1485 (11th Cir.1984) (); United States v. Collins, 779 F.2d 1520, 1529-30 (11th Cir.1986) ().
Camargo argues that, even if this conviction is upheld, he was the least culpable of all the appellants because he knew nothing about the drug transaction. Accordingly, he believes the district court clearly erred in failing to reduce his offense for minimal participation in the offense, pursuant to U.S.S.G. Sec. 3B1.2.
A district court's determination of a defendant's role in an offense is a finding of fact subject to review only for clear error. United States v. Taxacher, 902 F.2d 867, 873 (11th Cir.1990), cert. denied, 499 U.S. 919, 111 S.Ct. 1307, 113 L.Ed.2d 242 (1991); United States v. Forbes, 888 F.2d 752, 754 (11th Cir.1989). Moreover, the appellant bears the burden of proving the applicability of a particular Sentencing Guidelines section which would reduce the...
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