U.S. v. Cambindo Valencia

• Decision Date: 10 January 1979
• Docket Number: Nos. 759,s. 759
• Parties: 4 Fed. R. Evid. Serv. 1197, 5 Fed. R. Evid. Serv. 570 UNITED STATES of America, Appellee, v. Jose Esteban CAMBINDO VALENCIA, Jose Manuel Escobar Orjuella, Federico Gonzalez, Alfonso Velasco, Mario Caicedo, Edgar Enrique Moreno Ortiz, Julio Francisco Bermudez Prado, Rafael Flores Valencia, Carmen Vivas, Freddie Williams, Jesus Losada, and Rosalinda Losada, Appellants. to 763, 765 to 766, 770 to 771 and 840 to 842, Dockets 78-1364 and 78-1438 to 78-1448.
• Court: U.S. Court of Appeals — Second Circuit

Page 603

609 F.2d 603

4 Fed. R. Evid. Serv. 1197, 5 Fed. R. Evid. Serv. 570

UNITED STATES of America, Appellee, v. Jose Esteban CAMBINDO VALENCIA, Jose Manuel Escobar Orjuella, Federico Gonzalez, Alfonso Velasco, Mario Caicedo Edgar Enrique Moreno Ortiz, Julio Francisco Bermudez Prado Rafael Flores Valencia, Carmen Vivas, Freddie Williams Jesus Losada, and Rosalinda Losada, Appellants.

Nos. 759 to 763, 765 to 766, 770 to 771 and 840 to 842,

Dockets 78-1364 and 78-1438 to 78-1448.

United States Court of Appeals Second Circuit.

Argued April 11, 1979.

Decided Oct. 12, 1979.

On Rehearing Jan. 10, 1979.

On Rehearing Jan. 10, 1979

Donna Claire Pendergast, Philip S. Greene, Houston, Tex., for appellant Jose Esteban Cambindo Valencia.

Irving Katcher, New York City, for appellant Jose Manuel Escobar Orjuella.

Charles E. Clayman, New York City, Dawson, Kimelman & Clayman, New York City, for appellant Federico Gonzalez.

Jonathan J. Silbermann, New York City, Federal Defender Services Unit, Legal Aid Society, for appellant Alfonso Velasco.

Albert A. Gaudelli, Flushing, N. Y., for appellant Mario Caicedo.

Theodore Krieger, New York City, for appellant Edgar Enrique Moreno Ortiz.

Julius M. Wasserstein, Lasher & Wasserstein, New York City, for appellant Julio Francisco Bermudez Prado.

Maurice Brill, New York City, for appellant Rafael Flores Valencia.

Michael Ira Asen, New York City, for appellant Carmen Vivas.

Raphael F. Scotto, New York City, for appellant Freddie Williams.

F. Louis Caraballo, Brooklyn, N. Y., for appellant Jesus Losada.

Michael G. Dowd, Kew Gardens, N. Y., for appellant Rosalinda Losada.

Barry E. Schulman, Asst. U. S. Atty., Brooklyn, N. Y. (Edward R. Korman, U. S. Atty., for the Eastern Dist. of New York, Harvey M. Stone, Mary McGowan Davis, Diane F. Giacalone, Vivian Shevitz, Asst. U. S. Attys., Brooklyn, N. Y., of counsel), for appellee.

Before OAKES and GURFEIN, Circuit Judges, and PIERCE, District Judge. ^*

OAKES, Circuit Judge:

This appeal is from convictions of ten defendants for conspiracy to commit narcotics offenses (Count I, 21 U.S.C. §§ 846, 963), from convictions of several for the commission of substantive narcotics offenses (Counts II-X, XII-XIII, 21 U.S.C. §§ 841, 960), and from a conviction of one defendant, Jose Esteban Cambindo Valencia (Cambindo), ¹ for conducting a "continuing criminal enterprise" (Count XI, 21 U.S.C. § 848). Trial to a jury took place in the United States District Court for the Eastern District of New York, Jacob Mishler, Chief Judge. The court ruled as a matter of law that there was involved only a single conspiracy. Consequently it did not submit to the jury the question whether there were multiple conspiracies, but merely the question whether there was a conspiracy and whether each defendant was a member of it. Because we do not agree that the issue of single/multiple conspiracy could be determined as a matter of law in this case, and because the evidence permitted the finding of several conspiracies (and in the case of some defendants demanded such a finding), we must assume that multiple conspiracies were proved. In so doing, we must decide which of the appellants may have been prejudiced by the variance between the conspiracy charged and the conspiracies proved. We find that only one narrower conspiracy was sufficiently proved by the evidence to outweigh any possible prejudice from the spillover of proof as to other conspiracies. We therefore affirm the convictions only of those appellants who were clearly linked by the evidence with that conspiracy. We also reverse the convictions of others who might be linked with that conspiracy and remand their cases for a new trial. Finally, we reverse the convictions of those appellants whose connections with the conspiracy proved were so remote that they cannot under any circumstances be held to have participated in That conspiracy. On the substantive charges, we reverse the convictions of all but one defendant and remand for new trials. However, we affirm all the substantive convictions of appellant Cambindo, finding that any prejudice was, in his case, harmless.

STATEMENT OF THE CASE

I. Indictment and Convictions

The superseding indictment (78 CR 106(S)) charged twenty-seven defendants in one conspiracy and charged assorted defendants in twelve substantive counts, one of which accused defendant Cambindo of Each defendant named in a substantive count whose case went to the jury ³ was also convicted on each such count: Cambindo, named in Counts II, V, VI, X, and XI; Flores (Count IX); Vivas (Count X); Williams (Counts VII and VIII); Jesus Losada (Counts XII and XIII); and Rosalinda Losada (Counts XII and XIII). All except Vivas, Williams, and Rosalinda Losada are in custody serving their sentences, set out in the margin. ⁴

engaging in a continuing criminal enterprise (Count XI; 21 U.S.C. § 848). The conspiracy count (Count I) charged a conspiracy, occurring between approximately January, 1972, and October, 1976, violating 21 U.S.C. §§ 846 and 963, (1) to import and (2) to distribute and possess with intent to distribute substantial quantities of cocaine, as well as (3) to conceal the existence of the conspiracy. Four named coconspirators, Thomas Esposito, Lucho Plata, Louis Guillermo Moreno Serna (Moreno Serna) and Augustin Lemos, pleaded guilty (apparently to substantive counts) and do not appear. The case against another named conspirator (Juan Bautista Torres) was dismissed at the close of the Government's case. Four named coconspirators were "John Does," never arrested, and five more named were fugitives at the time of trial. One more (Zohie Perez) was convicted, but is a fugitive. The remaining twelve, all of whom appeal, were each convicted of the conspiracy count; these include Cambindo, Rafael Flores Valencia (Flores), Carmen Vivas (Vivas), Freddie Williams, Jesus Losada, and Rosalinda Losada, each of whom was also convicted of substantive counts, ² and Federico Gonzalez (Gonzalez), Jose Manuel Escobar Orjuella (Escobar), Alfonso Velasco (Velasco), Mario Caicedo (Caicedo), Edgar Enrique Moreno Ortiz (Moreno Ortiz), and Julio Francisco Bermudez Prado (Bermudez Prado), none of whom was charged with a substantive count.

Thus, there was a verdict of guilty as to every defendant on every count in which he or she was charged.

II. The Government's Proof

A. In General

The Government contended at trial that the alleged conspiracy involved persons who knew one another and in some cases had grown up together in Buenaventura, a Colombian port city. The Government presented evidence that the defendants utilized vessels of the Grancolombiana line (especially the Ciudad de Bogata and the Ciudad de Buenaventura) to import the cocaine to New York (although some of the transactions put in evidence relate to shipments to To clarify the myriad of individual transactions that must be recounted in detail in order to analyze the contentions of the parties, a brief listing in the nature of a cast or principal characters may be helpful. The Suppliers/Senders from Colombia include one Mauro, appellant Flores, defendant Alfonso Villafana (Villafana), Silvio, Juan Cambindo Rodriguez, and Ricardo Cambindo Rodriguez. Seamen include a "John Doe" and defendants Lemos, Jose Argoti, and Figueroa. Traffickers/Dealers include appellants Gonzalez, Escobar, Velasco, Mario Caicedo, Bermudez Prado, Cambindo, Moreno Ortiz, Rosalinda Losada, Jesus Losada, and defendant Ulpiano Vega. The Body Carriers include two longshoremen, defendant German Largacha and appellant Freddie Williams, as well as Jaime Ortiz, "Pepo" (Carlos Riascos), "Kilometer," and Alvaro Caicedo. The Swimmers include Government witness Pacifico Caicedo Rodriguez, Daniel Riascos, Conrado Ortiz, and defendant "El Wallo." Pick-up Men or Couriers include Government witness Moreno Serna, defendant "El Bolla," and Gillian Vargas. Government witness Emilio Rivas is a Purchaser, and Local Dealers include defendants Zohie Perez and "Lucho Plata," as well as appellant Vivas. It must be understood, however, that at various times, different characters appear in different roles: the Government witness Pacifico Caicedo Rodriguez, for example, swims, traffics, picks up, and deals; there is evidence that appellant Flores in addition to supplying also deals.

Miami, Baltimore, Los Angeles, and San Francisco), where the ships usually docked at Pier 3 below Brooklyn Heights or at the Bush Terminal in Brooklyn. These defendants, according to the Government, principally used the same general methods to remove the cocaine from the ships Viz., couriers carrying it on their bodies off the ship or seamen lowering the cocaine overboard to waiting "swimmers" who would enter the East River at the base of the Brooklyn Bridge (or other points), swim downstream to the vessel, get the shipment, and then swim further to an arranged point and waiting "pick-up man." They would exchange the illegal drugs among themselves or with others, principally at the Tunnel Bar, an establishment near the Brooklyn Bridge, although there were also transactions at Red Hook Park, the La Gran Casa store, a house in Queens, another house on Amity Street in the Cobble Hill section of Brooklyn, and elsewhere in greater New York City. The Tunnel Bar, owned by appellant Gonzalez and evidently the "on-the-drug-scene" successor to the Buenaventura Social Club on Hamilton Avenue in Brooklyn, exhibited sufficient prominence in the forty-eight or so transactions described during the trial to lead the Government to refer to the alleged conspiracy on occasion as the "Tunnel Bar Conspiracy." At other times, however, it has been referred to as the Buenaventura or the Grancolombiana Conspiracy.

B. Specific Proof

We have found no way to classify effectively the forty-eight or so specific transactions adduced at trial. The Government kindly furnished us postargument with flow charts purporting to show connections among...