U.S. v. Camargo-Vergara
| Decision Date | 07 July 1995 |
| Docket Number | No. 92-4159,CAMARGO-VERGAR,A,92-4159 |
| Citation | 57 F.3d 993 |
| 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 |
Manuel Gonzalez, Jr., Miami, FL, for Camargo Vergara.
Marc S. Nurik, Ft. Lauderdale, FL, Jeffrey D. Feldman, Feldman, Gale & Weber, P.A., Miami, FL, for Dominguez.
Lydia Ann Fernandez, Miami, FL, for Sanchez.
James W. McAdams, III, U.S. Atty., Jeffrey H. Sloman, Asst. U.S. Atty., Miami, FL, for appellee.
Appeals from the United States District Court for the Southern District of Florida.
On Petition for Rehearing
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 for conspiracy to import and possess with the intent to distribute 212 kilograms of cocaine. 1
Two confidential informants for the Drug Enforcement Administration (DEA), 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 suggested ways to transport the cocaine 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 stated that he would not deliver the cocaine until he received payment. During the conversation, Camargo-Vergara inquired whether Hernandez was a police officer.
After the meeting, Fontalvo called a Colombian drug trafficker and requested money to purchase 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. During the At the designated time, Dominguez drove to the meeting place, a supermarket, in a white Lexus, but left without making contact because he became suspicious that agents were monitoring the area. When Fontalvo told his Colombian associate that the meeting with Dominguez did not occur, the Colombian referred Fontalvo to Antonieta Sanchez.
conversation, Dominguez told Fontalvo that he had a moustache and would be driving a white Lexus.
When Fontalvo and Sanchez met, they developed a plan to assuage Dominguez's suspicion. Sanchez, a trusted associate of the Colombian drug trafficker, agreed to operate as a middle-person between Fontalvo and Dominguez. According to the plan, Sanchez would loan Fontalvo her automobile; then, Fontalvo would load it with cocaine and return it to her. Sanchez would then deliver the 212 kilograms of cocaine to Dominguez in two equal installments in exchange for approximately $1 million, which would be given to Fontalvo.
Hernandez, still posing as the drug courier, agreed with the plan and arranged for the government to load Sanchez's automobile with approximately 50 kilograms of sham cocaine, packaged to look like real cocaine. The false cocaine differed from genuine cocaine, however, in that when packaged the sham cocaine felt softer than real cocaine. The DEA agents also sprayed the cocaine packages with a special rub-off chemical that reacts to ultraviolet light, thereby allowing subsequent identification of persons who handle the cocaine.
A second undercover agent drove the sham cocaine-laden automobile 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 undercover agents continued with the charade and returned the false cocaine-laden automobile to Sanchez for delivery to Dominguez. Sanchez then drove the automobile to an underground parking garage where she met Dominguez. Dominguez removed the footlockers from the automobile and accompanied Sanchez upstairs to a vacant apartment. In a post-arrest statement, Sanchez stated that Dominguez opened the footlockers, felt the sham cocaine, and said, The government also asserts that Dominguez admitted in a post-arrest statement to DEA Agent Cynthia Schultz that "he had touched the kilos inside the trunk [and] said they were strange." When Dominguez handled the cocaine packages, the DEA's chemical solution rubbed off on his hands.
Government agents arrested Dominguez and Sanchez separately, when they drove out of the parking garage in their automobiles. In Dominguez's automobile, government agents found a piece of paper inscribed with the name and phone number of a Colombian drug trafficker that 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 of conspiracy to import cocaine, 2 importation of cocaine, 3 and conspiracy to possess with intent to distribute cocaine. 4 The jury also convicted Sanchez and Camargo-Vergara of conspiracy to possess with intent to distribute cocaine.
Camargo-Vergara and Sanchez contend that the evidence is insufficient to support their convictions. Camargo-Vergara also contends that the district court erred in refusing to reduce his offense level pursuant to the United States Sentencing Guidelines for minimal participation in the offense.
Dominguez contends 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 contends 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 argues that the sentencing court improperly applied the Sentencing Guidelines.
The appellants present the following issues:
(1) whether the evidence was sufficient to support their convictions;
(2) whether the district court 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 was insufficient to prove he had knowledge of the conspiracy and 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 views the evidence in the light most favorable to the government and determines 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, 503 U.S. 972, 112 S.Ct. 1588, 118 L.Ed.2d 306 (1992).
Our review of the record convinces us that the evidence sufficiently supported Camargo-Vergara's conviction. Camargo-Vergara accompanied Fontalvo to all significant events leading to their arrests. For example, Camargo-Vergara was present at and participated in several drug negotiations, offering suggestions on how to transport and store the cocaine. Additionally, 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-Fuentas 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-Vergara argues that, even if his conviction is to be affirmed, he was the least culpable of all the appellants because he knew nothing about the drug transaction. Accordingly, he believes the district court erred in failing to reduce his offense level 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,...
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